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a penalty parity (as way of protection) with losses and percent for using another's money resources

It is known, that the general form of responsibility under treaty obligations are losses. It follows, in particular, from the norm containing in item 1 of item 393 GK the Russian Federation: «the Debtor is obliged to pay to the creditor the damages caused by default or inadequate execution of the obligation».

Application of the penalty as a kind of property responsibility together with losses inevitably brings an attention to the question on a parity of the penalty and losses.

The parity of the penalty and losses is established in article 394 GK the Russian Federation. The general rule defining a parity of these ways of protection at their simultaneous application, consists that losses are compensated in the part which have been not covered with the penalty (the test penalty). It is necessary to notice, that the given rule is stated by the legislator in the provisional rule: the law or the contract other parity of the penalty and losses can be defined.

Except the test penalty, the law or the contract losses can be provided the exclusive penalty when the penalty is collected only, but not; the alternative penalty when for choice the creditor it is collected either the penalty, or losses; the penal sum when losses can be collected in the full sum over the penalty.

In the legal literature attempts of research of questions on in what sphere of legal relations expediently application of this or that kind of penalties [120] and also with what the establishment of the specified kinds of penalties [121] has been connected were at various times undertaken.

As the problem of our research in the given chapter of work consists in definition of the penalty as a way of protection of the broken civil rights, features of its application and a parity with losses, we consider pertinent to be limited to only following statement.

Essential distinction between the penalty and losses consists what to prove causing of losses and their size very difficult; to prove the fact of inadequate execution of a contract, for what the penalty in in advance certain sum of money is applied, does not constitute for the creditor of special work. In this connection O.S.Ioffe wrote that the penalty has special obespechitelnoe action in comparison with losses, and also is operative means of struggle for appropriate execution of the obligation on contractual legal relationships [122].

At application by the creditor of these two ways of protection of their parity it is necessary to be guided by norms of article 394 of the Code, other civil legislation regulating concrete legal relations, or treaty provisions.

In

Unfortunately, the question on a parity of similar measures of property responsibility is not always accurately settled in the law. Such problem exists concerning the penalty and percent for using another's money resources.

Point 1 of item 395 GK the Russian Federation says: «For using another's money resources owing to their wrongful deduction, evasion from their return, ♦ other delay in their payment or superficial reception or savings

At the expense of other person percent for the sum of these means come under to payment. The rate of interest is defined... A discount rate of bank percent at date of execution of the liability or its corresponding part... ».

In the legal literature it is possible to meet the various points of view of the legal nature of annual interest rates which could be consolidated in four positions which estimation is in detail spent by V.V.Vitrjanskim [123].

Research of this question has shown, that annual interest rates IH are considered by some scientists as indemnification or a payment for

Using the capital [124], admit quality of the penalty for infringement of the obligation [125], represent the form of the indemnification [126], represent a separate category of atypical (special) measures of property responsibility [127].

Studying of these problems is caused by that the former legislation had been provided position, according to which at infringement of the liabilities which have arisen from contracts, the creditor has been limited pra - B

vom on collecting from the debtor неустойки1 at a rate of five annual interest rates if the legislation or the agreement of the parties have not been establish other rate of interest. The liability for nonperformance besides, established earlier monetary обязательства2 in the form of annual interest rates was called as the legislator penej.

The current legislation percent for using another's money resources are not named by the penalty (penej). Absence in the Code of norms about a parity of the penalty and percent for using another's money resources promoted extensive interpretation of the nature of annual interest rates. C the moment of introduction of a part of the Russian Federation first the Civil code the judicial-arbitration practice considering disputes in the trial court, experienced considerable difficulties by consideration of claims about simultaneous penalty (peni) and percent for using another's money resources at contractual delinquency. In some cases courts satisfied requirements of creditors about collecting of percent and penalties for liability delay in performance in full, simultaneously collecting both the penalty and percent годовых3.

For differentiation of the penalty and percent on item 395 GK the Russian Federation basic value had the Decision of Plenum of the Supreme Court of the Russian Federation and Plenum of the Supreme Arbitration Court of the Russian Federation № 6/8 from July, 1st 1996г. «About some questions connected with application of a part of the Russian Federation first the Civil code». After its acceptance judicial-arbitration practice was stabilised and began to differentiate consequences of delay of payment in the form of the penalty (peni) and percent for polzo -

1 See: Lunts L.A.money and liabilities. - S.82-834; It. The Liability in civil and a law of conflict of the capitalist countries. - M., 1948. - С.63; O.N.Obespechenie's Gardens of execution of the foreign trade contract. - M., 1979. - S.5-6.

2 See: Rosenberg n of the liability//the Comment to the Civil code of the Russian Federation. - M., 1995. - S.5-14; It. The legal nature of annual interest rates under liabilities//the Civil code of Russia. - M., 1998. - S.309-334; Vitrjansky V.V. Protsenty under the liability as the form of responsibility H the Economy and the right. 1997. - № 8. - S.57-74.

3 See: the Bulletin YOU the Russian Federation. 1997. - I. - S.46-47; the Bulletin YOU the Russian Federation. 1996. - № 7. - with. 19, 49.

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vanie another's money resources. However in it concepts of "penalty" and the "percent" provided by point 1 of article 395, admitted тождественными1. Such dual interpretation of "percent" was concretised by Presidium of the Supreme Arbitration Court of the Russian Federation. According to its instructions on collecting of the contractual penalty for infringement of the liability and percent on Code item 395 judicial-arbitration practice should SH recognise that according to the general principles civil for

konodatelstva for the same infringement two measures of civil responsibility to be applied not могут2.

In some decisions of Presidium of the Supreme Arbitration Court of the Russian Federation that as the party contract have provided responsibility in the form of the penalty (peni), responsibility application under item 395 GK the Russian Federation in the form of collecting of percent for liability default is excluded was specified. Thus as motive of refusal that rules of point of item 395 GK the Russian Federations are applied only in has served in collecting about - Ifc cents

That case if other rate of interest is not statutory or договором3. In other Decision № 54/97 from April, 29th 1997г. The presidium of the Supreme Arbitration Court of the Russian Federation has proved the conclusion that the percent provided by article 395 GK the Russian Federation, are an independent kind ответственности4.

As show results of studying of the judicial-arbitration practice, similar interpretation by the higher degree of jurisdiction of the nature of the percent applied for using by another's money resources under item 395 of the Code, has changed as a whole character of claims shown by creditors to the debtors. The requirement about penalty, depending on what is declared or the requirement collecting of annual interest rates, or of

1 See: the Bulletin YOU the Russian Federation. 1996. - № 9. - S.5-20.

2 See: the Bulletin YOU the Russian Federation. 1997. - Xs 8. - С.28, 29, 41, 42.

3 See: the Bulletin YOU the Russian Federation. 1997. - № 11. - S.56-57; the Bulletin YOU the Russian Federation. 1999.-Xs 2. - S.50-51.

4 See: the Bulletin YOU the Russian Federation. 1997. - Xs 8. - S.41-42; the Bulletin YOU the Russian Federation. 1997. - Xs 7. - S.49-50.

The listed measures most full compensates losses of the creditor.

That the given approach developed by judicial-arbitration practice, has found the acknowledgement in the Decision named above № 13/14 from 8.10.98г is characteristic. «About practice of application of positions of the Civil code of the Russian Federation about percent for using another's money resources» 1. So, in point 6 of the given Decision it is established, that in liabilities the creditor has the right to make the demand about application of one of these measures, not proving the fact and the size of the losses suffered by it at default of the liability if other directly is not statutory or the contract.

The court is thus noticed, that, considering the compensatory nature of percent, with reference to Code item 395 has the right to reduce the rate of the percent collected in connection with delay in performance of the liability if it is obviously disproportionate to consequences of delay in performance of the liability (item 7 2).

It is represented, that it is impossible to attribute properties of the penalty to annual interest rates only on those bases, that now annual interest rates can be reduced in case of their disproportion to consequences of infringement of the obligation to similarly article 333 GK the Russian Federation (thus the court has the right to make reduction of percent only in the form of reduction of the applied rate of refinancing), as in the Decision № 13/14 from October, 8th 1998г. «About practice of application of positions of the Civil code of the Russian Federation about percent for using another's money resources» about the penalty and annual interest rates it is a question as of independent measures of responsibility. Besides, it is impossible to forget, that earlier application of article 333 GK the Russian Federation to percent for using another's money resources directly admitted practice of Presidium of the Supreme Arbitration Court of the Russian Federation

Wrongful, «...poskolku they (percent) are not the penalty...» 1.

Apparently, the penalty (in a kind peni) and percent have a lot of similarity. Comparison of various opinions of scientists and the rules regulating an order of application of the penalty (peni) and the percent established by point 1 of article 395 GK the Russian Federation, has allowed authors to reveal considerable enough similarity between them.

So, L.A.Novoselova fairly marks: 1) the penalty (penja) and percent are applied in case of lasting infringement of obligations by the debtor in the form of obligation delay in performance; 2) the creditor at a requirement presentation about collecting as penalties, and percent at liability delay should not represent proofs of presence and the size of the losses caused to it; 3) the bond creditor has the right to claim damages in a part exceeding the sum of percent, due to it on the basis of article 395 point 1 (item 395 item 2) Code. Under the general rule the penalty also has test character (item 1 of item 394 GK the Russian Federation); 4) collecting of annual percent and the penalty has one purpose - to compensate losses of the creditor; 5) the size of the penalty (peni) can be established the agreement of the parties or the law. The statutory rate of interest also can be changed the contract or the law.

Approximately in the same similar lines between the penalty and annual interest rates specifies also A.Popov. He in a substantiation of the position refers to article 395 GK the Russian Federation which can be perceived as the special provision of the lawful penalty in relation to article 330 GK РФ3.

But hardly similar similarity between the penalty and percent for using another's means allows to draw a conclusion that percent can be carried to the lawful penalty.

«The percent levied for default of the liability, not mo -

1 See: the Bulletin YOU the Russian Federation. 1997. - № 7. - S.49-50.

2 See: Novoselova L.A. About legal effects of infringement of the liability//the Bulletin YOU the Russian Federation.

1999. - №4.-S.70.

3 See: n's Priests of the liability. - S.79-80.

gut to admit the penalty both for the juridiko-formal reasons, and for reasons in essence. The Juridiko-formal circumstances, not allowing to qualify annual interest rates as the penalty, consist in the differentiated regulation of the named legal categories »[128].

Judiciary practice recognises that, first, the percent provided by point 1 of article 395 GK the Russian Federation, are not named by the legislator the penalty. Secondly, point 1 of article 394 GK the Russian Federation is supposed possibility of an establishment by the law or the contract of a various parity of losses and penalties (an establishment of the exclusive, penal or alternative penalty). Point 2 of article 395 GK the Russian Federation excludes possibility of an establishment of other (except test) parities between percent and losses [129].

Meanwhile qualification of the percent provided by point 1 of article 395 GK the Russian Federation as a special measure of the civil responsibility which is not concerning neither to losses, nor to the penalty, demands definition of "mode" of this responsibility with reference to articles 401 and 416 GK the Russian Federation. On this question various judgements have been stated in the literature. V.V.Vitrjansky as a discriminating sign of responsibility in the form of annual interest rates specifies that «at collection of percent for liability default the norms containing in articles 401,416 GK the Russian Federation» [130] should not be taken into consideration.

L.A.Novoselova specifies in impossibility of application of article 416 GK the Russian Federation to liabilities (as, however, and to the majority of other obligations which subject are things, generic) for peni and considered «percent differ among themselves» [131].

The similar opinion is stated and MG.Rozenbergom [132]. It has found acknowledgement and in the Decision of Presidium of the Supreme Arbitration Court Russian

Federations № 7595/97 from August, 4th 1998г. Under Joint-Stock Company "Contour" claim to Road clinical hospital of station "Chita-2" of the Transbaikalian railway about collecting peni for unpaid amount and percent for using strangers monetary средствами1. About distinction between penej and percent it is spoken also in the Decision of Plenum of the Supreme Court of the Russian Federation and Plenum of the Higher Ap -

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bitrazhnogo Vessels of the Russian Federation № 13/14 from October, 8th 1998г. (Item 5).

One of the characteristic principles inherent in the penalty, unlike bank percent for using another's money resources, the principle of equality of a responsibility of the parties which is based on an estimation of the importance of each of counter obligations is.

Under the general rule at penalty the creditor is not obliged to prove neither causing to it losses, nor its size. Requirements about collecting of losses in general are shown seldom in view of complexity of their proving. Under such circumstances the court by consideration of dispute on penalty does not have any data on presence of losses, on its size in this connection it is practically impossible to define during this moment, in what part the penalty exceeds losses that in this part to give up in satisfaction of the claim with that motivation that misuse of right takes place in this part of the claim. It is impossible to estimate in advance the size of losses. Losses that have been estimated by court from the legal point of view, should be, at least, are declared by the creditor to collecting, further, there should be a fact in evidence of presence of losses and their size.

For comparison of the lawful penalty and bank percent for using another's money resources is considered to result the following comparative table necessary.

SIMILARITIES

The penalty and bank percent

DISTINCTIONS

The penalty and bank percent

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