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Measures of civil responsibility of banks for infringement of the rights and legitimate interests of clients while translating electronic money resources

civil responsibility Measures are legal means of state-imperious property influence for the offender by deterioration of its property status, imposing of penalties (sanctions­), objazyvanija to undergo to (execute) measures of influence taken to its,­ to undertake positive actions under the prevention, suppression ­ and the offence termination, restoration of an initial condition,­ compensation (indemnification) of the caused losses and harm in ­ a statutory order.

the Basic measures of civil responsibility of banks for infringement of the rights of the clients using payment cards, are­: the indemnification, collecting of percent, penalties, indemnification ­ of moral harm.

Losses are term of money of the property losses (harm), ­ the suffered expenses or expenses which will be suffered in the future in connection with a perfect offence, loss, damage, property (a real damage), and also not received incomes (loss of profit) (item 15 GK the Russian Federation) [259] . The sustained person (authorised, the creditor) can demand the full indemnification of the losses caused to it (if the law or the contract do not specify in indemnification possibility in the smaller size), and the debtor is obliged to pay the damages caused by default or inadequate execution ­ of the obligations. Use by the creditor of various ways of protection
the broken rights, does not deprive of its right to apply such way of protection, such measure of responsibility, as the indemnification, caused by default ­ or inadequate discharge of duties. Losses - these suffered ­ expenses or expenses which will be suffered further in connection with ­ a perfect offence, loss, damage, property (a real damage), and also not received incomes (loss of profit). The Loss of profit ­ are the incomes not received by the creditor which it would receive at reasonable expenses and normal execution of obligations by the debtor. ­ An indemnification result is restoration of initial position of sustained (creditor), in which it would be, if the obligation has been executed properly (item 393 GK the Russian Federation) [260] .

On the claimant the duty is assigned to prove, that the appropriate respondent under its claim is the person, harmed (losses), and also a duty to prove the fact of infringement of the obligation (injury), presence of losses. The size of losses should be found out with known (reasonable) degree ­ of reliability. In satisfaction of the action for damages cannot be given up ­ referring to impossibility of an exact establishment of their size. In such ­ situation the size coming under to the indemnification is defined by court, proceeding from all investigated circumstances of business, principles of justice and soraz -

regularities. Absence of fault is proved by the person who has broken the obligation (item 2 of item 401 GK the Russian Federation). Under the general rule the trespasser is released from ­ harm compensation if will prove, that harm is caused not through his fault (item 2 of item 1064 GK the Russian Federation). The Onus of proving of the innocence lays on the person who broken ­ the obligation or has harmed. The fault in obligation infringement is supposed,­ until proved otherwise. The person who bears a liability of infringement of the obligation irrespective of fault, is obliged to prove the circumstances forming the basis for condonation.

Approximate ­ calculation by the claimant of the size of the prospective loss of profit cannot be the basis to non-suit [261] .

Plenum of the Supreme Court of the Russian Federation has explained, that the size of the loss of profit depends on measures undertaken by the creditor for its reception and realisation ­ of necessary preparations (item 4 of item 393 GK the Russian Federation). Thus the creditor has the right ­ to present to court not only proofs of acceptance of measures and preparation for reception of the loss of profit, but also any other proofs of possibility ­ of its extraction. The creditor is obliged to present the proofs ­ confirming causing to it of losses, their size (with reasonable degree of reliability­), and also causal relationship presence between default or inadequate ­ execution of the obligation by the debtor and the caused losses. In turn, the respondent (debtor) can challenge the size ­ of the losses caused to the creditor ­ and to present to court counter that proof, that the creditor could reduce these losses by acceptance of reasonable measures, but has not made it ­(item 404 GK the Russian Federation). For the purpose of a causal relationship establishment between infringement of the obligation and losses Plenum of the Supreme Court of the Russian Federation urges to consider, what consequences in normal conditions of the civil circulation would be had by similar infringement. As a rule, causal relationship presence between ­ infringement and the losses proved by the creditor is supposed. Objecting
the respondent (debtor) has the right to present the proofs confirming ­ absence of a relationship of cause and effect between its actions (bezdejstvijami) and losses. The fault of the debtor in obligation infringement also is supposed, if other is not proved. Absence of fault in default or inadequate ­ execution of the obligation is proved by the debtor (item 2 of item 401 GK the Russian Federation). If responsibility irrespective of fault ­ the debtor objecting ­ to the claim is obliged to prove the circumstances forming the basis for clearing of such responsibility, for example, an establishment of signs of force majeure (chrezvychajnost and nepredotvratimost) (item 3 of item 401 GK the Russian Federation) takes place­. The debtor is obliged to take all reasonable measures for reduction of the damage caused to the creditor in the conditions of force majeure, under the threat of ­ compensation to the creditor of the arisen losses (item 307 item 3, item 1 of item 393 GK the Russian Federation). The credit and the debtor can limit at own discretion responsibility of the debtor (item 4 of item 421 GK the Russian Federation). The conclusion of such agreement is not supposed, if it breaks the requirement of item 2 of item 400 GK the Russian Federation or contradicts an obligation being­. The agreement of the parties on elimination or restriction of responsibility does not relieve from responsibility for deliberate infringement of the obligation (item 4 of item 401 GK the Russian Federation). Absence of intention is proved by the person who has broken ­ the obligation (item 1 and 2 items 401 GK the Russian Federation) (item 2 - 8 Decisions) [262] .

Plenum of the Supreme Arbitration Court of the Russian Federation has explained, that if other is not statutory or the contract, and it was impossible to establish the fact ­ of delivery of the order the unauthorized person, the bank bears responsibility for consequences of execution of the commissions which have been given out by unauthorized persons. The court can reduce the size of a banking liability if it will be established, that the client the actions promoted receipt in bank of such ­ poor-quality orders (item 2 of item 404 GK the Russian Federation). At default or ­ inadequate execution of contractual obligations of the bank account from bank on
the basis of general provisions GK the Russian Federation about responsibility (gl. 25) damages in the part which have been not covered with application of other measures of responsibility (article 856 and 866 GK the Russian Federation) can be claimed. The client has the right to sue about collecting of percent in a format of item 395 GK the Russian Federation and percent for using another's money resources ­ to bank which does not write off a corresponding sum of money from the account under the order of the client. If after cancellation of the contract the bank ­ wrongfully keeps the rest of money resources on the account, and also the sums under ­ unsatisfied payment commissions it bears responsibility agrees item 395 item, 1105, 1107 GK the Russian Federation (item 2, 7, 10, 11) [263] .

Bank as the party under the bank account contract can be involved in civil responsibility in the form of the indemnification, caused ­ by disclosure of bank secret. According to item 857 GK the Russian Federations constituting bank secret of data can be given only to clients or their representatives, and also the bureau of credit histories on the bases and ­ is perfectly in order, statutory. Such data can be given the state bodies and their officials, and also other persons ­ exclusively in cases and an order, statutory. In case of disclosure ­ by bank of the data constituting bank secret, the client which rights are broken, has the right to demand from bank of compensation of the caused losses (item 1 - 3). A duty to store professional secret, including secret ­ of the bank account, it is assigned not only to bank, but also its employees, and also on ­ the control, auditor and auditing organisations and their officials. As is known, banks give out under accounts not only clients, but also by inquiries Schetnoj ­ of chamber, court, other law enforcement bodies, tax service, ­ customs bodies. In item 26 of the Law on banks and bank activity also specifies in responsibility of banks for disclosure of bank secret and ­"damage" causing, in detail regulates an order of granting of banks ­
skoj information to other interested persons and the authorised ­ organisations, including antimonopoly bodies, obliges the credit organisations, Bank of Russia to store secret about bank operations and accounts of the clients and correspondents in a statutory order. The federal act from 26.07.2006 ¹ 135-FZ (red. From 27.12.2018) «About competition protection» (from amendment and dop., vstup. In force from 08.01.2019) [264] obliges banks not to disclose bank secret by inquiries of antimonopoly body.

Judiciary practice shows, that the most widespread ­ bases of civil responsibility of banks for infringement of the duties under the contract of bank account GK the Russian Federations are: 1) untimely ­ transfer by bank of the money resources which have arrived into the account of the client; 2) unreasonable write-off of money resources from the account of the client; 3) default or untimely performance of instructions of the client about transfer of money resources from the account or about their delivery from the account (item 856 GK the Russian Federation).

As is known, the bank is obliged to enlist arrived on the account of the client ­ money resources not later than the day following day of receipt in bank ­ of the corresponding payment document if more the short term is not statutory,­ bank rules or the contract. ­ The duty is assigned to the bank organisation ­(the party of the contract of the bank account) to give out or write off from the account money resources of the client under the order of the last ­ not later than the day following day of receipt in bank of the payment ­ document if other terms are not statutory, bank rules or the contract (item 849 GK the Russian Federation). The bank is obliged to make in interests of the client of operation, statutory, bank rules and customs for accounts of a certain kind if the contract does not provide other. The law ­ forbids to enlist on occasion money resources into the account of the client or to write off from its account (item 848 GK the Russian Federation).

Rules of restraint and procedure of their application are statutory ­ about banks and bank activity, the Law on currency regulation ­ and exchange control, the Law on counteraction to washing up of incomes, ­ a part of the Russian Federation first the Tax code, and also norms of the Civil ­ code of practice of the Russian Federation (further - GPK the Russian Federation) [265] , the Arbitration code of practice ­ of the Russian Federation (further - agrarian and industrial complex of the Russian Federation) [266] , the Code of Criminal Procedure of the Russian Federation (further - UPK the Russian Federation) [267] , the Criminal code of the Russian Federation [268] , the Code about administrative violations ­(further - KoAP the Russian Federation) [269] , the Customs code of the Russian Federation [270] [271] , the Federal act from 02.10.2007 ¹ 229-FZ (red. From 27.12.2018) «About executive proiz -

271

vodstve », etc.

the Named laws contain legal restrictions of the rights of bank clients under the order the money resources appearing on their ­ bank accounts. Restrictions concern those restrictions and interdictions and interdictions for the conclusion and execution of a contract of the bank account ­ in the form of refusal of making contract of the specified type, stay (blocking, freezing) the bank account of the client and even arrest, ­ confiscation of the monetary resources considered on the bank account by means of paper and electronic carriers (electronic instruments of payment), in ­ statutory cases and an order, in particular­­­. Arrest of money resources (precious metals), being on bank accounts of the client, can take place on
to the lawful and proved definition (decision) law-enforcement ­ and courts of justice with a view of maintenance of execution ­ of the decision (decision) of the court of justice future or ­ entered validity about collecting ­ of money resources from the client in favour of other persons (including ­ publichnopravovye formations) under obligations of the client or withdrawal from a turn ­ of illegal money resources or execution of the lawful and proved sentence ­ of court about a confiscation of the client. Collecting of the money resources which are on the account, as execution of judgement can be made only on the basis of the executive document according to the Law on final process. Confiscation of non-cash ­ money resources is possible only on the basis of the sentence which has entered ­ validity or the administrative decision.

arrest of the money resources which are on the joint account under obligations of one of holders of such account in size, exceeding established by the contract or the law a share of its money resources Is forbidden. Arrest ­ of the monetary resources brought on the joint bank account addressed to clients - of spouses under the contract of the bank contribution in the absence of the marriage contract is regulated by norms of the family legislation on responsibility ­ of spouses (spouse) under community debts of spouses and obligations of one of them. The bank has not the right to establish additional, not statutory ­ or the contract, restrictions of competences of the client under the order ­ the monetary resources (points 3 - 4 items 845, points 2 - 3 items 858 GK the Russian Federation).

On the basis of arrest of money resources (precious metals), the rest of electronic money resources the credit organisation immediately after ­ reception of a copy of the judicial decision is obliged to cease all account operations under the given account in volume of the arrested sum of money or transfer ­ of electronic money resources within the arrested size ostat - ka [272] . Cancellation of the contract of the bank account is not the basis for snja ­
tija the arrest imposed on money resources, being on the account, or ­ cancellations of stay of operations under the account (item 3 of item 858 GK the Russian Federation).

the Banks guilty of the arbitrary arrest, nezachislenii or untimely ­ transfer, neperechislenii or a lack of distribution of the money resources which have arrived ­ into the account of the client, are obliged to pay the percent charged on ­ illegally arrested money resources either out of time added or illegally written off money resources, and also not translated or ­ out of time translated monetary resources (item 856 GK the Russian Federation), in an order and the size provided by item 395 GK the Russian Federation (irrespective of payment of percent for using bank another's money resources). ­­ The disposition of article 27 of the Law on banks and bank activity that «the credit organisation, Bank of Russia do not bear a damage liability, caused as a result of arrestment or the collecting reference on money resources and other ­ values of their clients, except for cases, statutory» is represented a little ­ declarative, irresponsible, arrogant, dezorientirujushchy clients ­ and serving banks, with a lobbist orientation­. ­ It turns out, that infringements of bank structures have exclusive individual ­ character (only in the cases listed by the law) at arrest of non-cash ­ money resources and the reference of collecting on them. Judicial-arbitration practice testifies to numerous infringements of banks on performance ­ of professional duties in the specified sphere. Besides, ­ the Civil code of the Russian Federation provides substantive provisions about contractual ­ responsibility under the bank account contract.

According to item 395 GK the Russian Federation, collecting of percent as ­ civil responsibility measures ­ arises owing to illegal use ­ of another's money resources, their wrongful deduction, evasion from their return, other delay to their payment or superficial reception or savings at the expense of other person (for the sum of these means). Now the size of recoverable percent is defined, proceeding from the average rate ­ of bank percent on contributions of physical persons. If the agreement of the parties
provides the penalty for default or inadequate execution ­ of the liability percent do not come under to collecting under a condition if other is not statutory or the contract. The court has the right to reduce the size of recoverable percent on the statement of defence if the sum of percent coming under to payment is obviously disproportionate to consequences of infringement of the obligation. In cases, statutory, application of "difficult" percent ­(percent for percent) is possible­. Concerning participants of enterprise activity such situation is inadmissible except for cases, ­ statutory or the contract. In case of excess of volume of the caused losses of the size of due percent, the debtor is obliged to pay a difference between the specified sizes. Percent are levied till day of payment of the sum of these means to the creditor if the law, by other legal acts or the contract ­ does not provide more the short term.

According to item 31 of the Law on banks and bank activity the credit ­ organisation is obliged to carry out calculations by rules, forms and the standards established by Bank of Russia, and in case of absence of those at separate kinds of calculations - under the arrangement among themselves. Banks urged to carry out ­ international payments in an order provided by federal acts ­ and rules, accepted in the international bank practice. ­ The credit organisation and Bank of Russia are obliged to enlist money resources ­ of clients into their accounts and to list them not later than next operational day after reception of the corresponding payment document if other is not provided by the federal act, the contract or the payment document. In case of untimely or wrong transfer into the account or write-offs ­ from the account of the client of money resources the credit organisation pays percent for the sum of these means (item 3).

In the Decision of Plenum of the Supreme Court of the Russian Federation ¹ 13, Plenum YOU the Russian Federation ¹ 14 from 08.10.1998 (red. From 24.03.2016) [273] it is explained, that, it is provided ­
nye by article 395 GK the Russian Federation percent differ by the nature from the percent paid for using by another's money resources (under the loan for consumption - item 809, under the credit contract - item 819, under the commercial credit - item 823). In connection with coming into force since February, 10th, 1996 of the Law on banks and the bank activity, established responsibility for untimely write-off of means from the account, untimely transfer of means for the account, ­ wrong write-off (transfer) of means (item 31), Position item 7 about penalties for infringement of rules of fulfilment of the settlement operations approved by the Decision ­ of Ministerial council of the USSR from September, 16th, 1983 ¹ 911, providing ­ banking liability for similar breaches of contract of the bank account,­ does not come under to application. After introduction in action of a part by the second GK the Russian Federations the sanction provided ch. 3 items 31 of the Law on banks and bank ­ activity, are applied concerning infringements, for which items 856 of the code of responsibility does not establish (item 20). Plenum also has explained, that in case of ­ default by the debtor of the award of damages, including its delay the guilty person pays percent for the sum of vindictive damages from the date of the introduction of the decision into validity and before its execution (item 23).

In the Decision from March, 24th, 2016 ¹ 7 Plenum of the Supreme Court of the Russian Federation has made rather important additional explanations on discussed questions. Plenum has explained, that provided by point 1 of item 395 GK the Russian Federation percent come under to payment irrespective of the basis of occurrence of the obligation (­ the contract, other transactions, injury, unjust enrichment or other bases specified in GK the Russian Federation). The given point is not applied, if ­ money resources are not means of repayment of the liability, and serve only as object of delivery by cash in bank under contracts of cash ­ service, transportation of bank notes etc. To tax (financial) and admi ­
nistrativnym to legal relations of norm of the civil legislation ­ are applied only in the cases provided by the legislation (item 3 of item 2 GK the Russian Federation). Percent are not charged on sums of money - the financial sanctions ­ unreasonably collected with legal and physical persons by tax, ­ customs bodies, pricing bodies, other state ­ bodies, and returnable of the corresponding budget. In these cases citizens and legal bodies can make demands about the indemnification on the basis of articles 15, 16 and 1069 GK the Russian Federation. The sum of the percent ­ provided by article 395 GK the Russian Federation, is set off in the sum of the losses caused by default or inadequate execution of the liability (item 1 of item 394 and item 2 of item 395 GK the Russian Federation) (item 37 - 41).

Plenum of the Supreme Court of the Russian Federation also has explained, that if the law or ­ the agreement of the parties provide the penalty for liability infringement ­(item 1 of item 394 GK the Russian Federation) positions of item 1 of item 395 GK the Russian Federations are not applied. In this case advantage the lawful or contractual penalty (receives item 4 of item 395 GK the Russian Federation). Transfer of money resources into the depositary account of division ­ of bailiffs in a statutory order ­ the fact of appropriate execution by the debtor of the liability before the creditor proves to be true­. Absence at the debtor of money resources is not ­ the basis for its condonation for default of the liability and charge of percent (item 1 of item 401 GK the Russian Federation). The debtor is released ­ from payment of percent if the creditor has refused to accept the appropriate execution offered by the debtor (item 405 item 3, item 3 of item 406 GK the Russian Federation). ­ The percent awarded by court for using another's money resources ­ are collected till day of payment of these means to the creditor. The court can specify in the decision in collecting of percent till the moment of actual execution ­ of the obligation (item 3 of item 395 GK the Russian Federation). Calculation of the percent charged after awarding judgement, is carried out in the course of its execution by the judicial police officer - by the executor (points 37 - 48).

Plenum of the Supreme Arbitration Court of the Russian Federation by the Decision from April, 19th 1999 ¹ 5 also has explained, that the client has the right to sue about collecting ­ of percent in a format of item 395 GK the Russian Federation and percent for using another's money resources to bank which does not write off a corresponding ­ sum of money from the account under the order of the client. If after cancellation ­ of the contract the bank wrongfully keeps the rest of money resources on the account, and also the sums under unsatisfied payment commissions it bears ­ responsibility on the basis of item 395 item, 1105, 1107 GK the Russian Federation in the form of payment of percent on the rest of the kept sums since then when has learnt or (item 14) should learn about superficiality of reception or savings of money resources, i.e. after the expiration provided by item 859 GK the Russian Federation 7-day term. A similar explanation Plenum of the Supreme Court of the Russian Federation in the ­ Decision from March, 24th, 2016 ¹ 7 (has given also ­ items 51 - 52).

Being a civil responsibility measure (item 12 GK the Russian Federation) ­ the penalty carries out four major functions: 1) it is compensatory - the regenerative; 2) penal, 3) obespechitelnuju; 4) ­ preventivnovospitatelnuju. Joint Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court ­ of the Russian Federation in the Decision ¹ 13/14 (1998) Has explained, that ­ the Russian Federation provided by article 856 GK the lawful penalty (code item 332) can be applied to the bank serving the client on the basis of the contract of the bank account, in connection with default or inadequate discharge of duties on fulfilment of settlement operations (item 20) [274] . Banks are obliged ­ to enlist money resources into the account of the client, to give out or list them in the terms provided by article 849 GK the Russian Federation. In connection with delay in performance of this duty the bank should pay the penalty to the client for all period about ­
srochki at a rate of a discount rate of bank percent per day when operation on transfer, delivery or transfer has been made. Bank delay in transfer of money resources is the basis for payment of the penalty on the basis of the item 856 codes if at intrabank calculations of means have not been enlisted into the account of the addressee in the same bank in time, provided by article 849 GK the Russian Federation, and at interbank calculations - if the commissions ­ provided with granting of the corresponding covering (presence of means on the correspondent account of bank-payer at bank-intermediary), have not been transferred ­ in this term to bank-intermediary. At unreasonable write-off (in the volume ­ exceeding the sum, specified in payment the document, and also at write-off without the payment document or with infringement of requirements ­ of the legislation, the penalty is charged from the date of unreasonable write-off by bank ­ of a sum of money from the bank account and before their restoration on the account at date of restoration of money resources on the account. In case of a presentation and ­ satisfaction of the claim the court defines the percent rate, proceeding from the rate ­ operating at date of suing or at date of awarding judgement (item 21). It is necessary to underline, that explanations of the mentioned joint ­ Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, stated in points 1 - 3; 5 - 11; 23 - 29, have lost the force on the basis of the Decision of Plenum of the Supreme Court of the Russian Federation from March, 24th, 2016 ¹ 7 [275] .

In the Decision of Plenum of the Supreme Court of the Russian Federation from March, 24th, 2016 ¹ 7 it is explained, that in case of default or inadequate execution ­ of the obligation (in particular, at delay in performance) the law or the contract can assign on the debtor a duty to pay to the creditor a certain ­ sum of money (penalty) in the form of the penalty or peni (item 1 of item 330 GK the Russian Federation). On sense of item 330 GK the Russian Federation, the claimant has the right to demand penalty award till day ­ of actual execution of the obligation, in particular, actual payment to the creditor
money resources. Awarding the penalty, the court on request of the claimant in ­ the decision substantive provision specifies the sum of the penalty estimated for date ­ of awarding judgement and callable, and also that such collecting is made till the moment of actual execution of the obligation. Calculation of the sum ­ of the penalty charged after awarding judgement, is carried out ­ in the course of execution of the judicial certificate by the judicial police officer-executor, and in ­ cases, statutory, - other bodies and the organisations. The size ­ of the penalty can be reduced court in case of its obvious disproportion ­ to consequences of infringement of the obligation (item 1 of item 333 GK the Russian Federation).

Thus, courts bring the worthy contribution to protection of the rights and legitimate interests of the bank clients using electronic instruments of payment (bank payment cards). The specified participants of settlement legal relations ­ apply universal and special ways of protection of the rights, and also initiate measures of civil responsibility concerning the bank organisations, offending norms GK the Russian Federation, federal acts,­ bank rules and positions, a condition of contracts.

the Most widespread measures of responsibility of guilty banks are: the indemnification, penalty, percent, indemnification of moral harm.

Judiciary practice shows, that the most widespread ­ bases of civil responsibility of banks are: 1) untimely ­ transfer of money resources into the account of the client; 2) unreasonable ­ write-off of money resources from the account of the client; 3) default or untimely ­ performance of instructions of the client.

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A source: Klochihin Vyacheslav Anatolevich. CIVIL-LAW REGULATION of SETTLEMENT OPERATIONS With USE of BANK CARDS. The DISSERTATION on competition of a scientific degree of the master of laws. Kursk 2019. 2019

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