In order to ensure the unity of practice in the application by courts of the provisions of the Civil Code of the Russian Federation on liability for violation of obligations, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation, Articles 2 and 5 of the Federal Constitutional Law of February 5, 2014 N 3-FKZ "On the Supreme Court Russian Federation", decides to give the following clarifications:

General provisions on liability and indemnification

1. The debtor is obliged to compensate the creditor for losses caused by non-fulfillment or improper fulfillment of an obligation (clause 1 of Article 393 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation). Unless otherwise provided by law or an agreement, losses are subject to compensation in full: as a result of their compensation, the creditor must be placed in the position in which he would have been if the obligation had been properly performed (Article 15, Clause 2 of Article 393 of the Civil Code of the Russian Federation).

Unless otherwise provided by law, the use by a creditor of other methods of protecting violated rights provided for by law or an agreement does not deprive him of the right to demand from the debtor compensation for losses caused by non-performance or improper performance of an obligation (paragraph 1 of Article 393 of the Civil Code of the Russian Federation).

2. According to Articles 15, 393 of the Civil Code of the Russian Federation, losses include actual damage and lost profits.

Real damage is understood as the expenses that the creditor has made or will have to make to restore the violated right, as well as the loss or damage to his property.

Lost profits are incomes not received by the creditor, which he would have received, taking into account the reasonable costs of obtaining them under normal conditions of civil circulation, if his right had not been violated.

If the person who violated the right received income as a result, the person whose right was violated may demand compensation, along with other losses, for lost profits in an amount not less than such income (paragraph 2 of Article 15 of the Civil Code of the Russian Federation).

3. When determining the amount of lost profits, the measures taken by the creditor to obtain it and the preparations made for this purpose are taken into account (paragraph 4 of Article 393 of the Civil Code of the Russian Federation).

At the same time, to justify the amount of lost profit, the creditor has the right to present not only evidence of taking measures and preparations to receive it, but also any other evidence of the possibility of extracting it.

For example, if the customer sued the contractor for damages caused by improper performance of a contract for the repair of a store building, alleging that, as a result of work with defects, he was unable to carry out his usual retail business, then the calculation of lost profits may be made on the basis of the plaintiff's profit data for the same period of time before the defendant's breach of obligation and/or after the breach ceased.

The debtor is not deprived of the right to provide evidence that the lost profit would not have been received by the creditor.

4. According to paragraph 5 of Article 393 of the Civil Code of the Russian Federation, the court cannot refuse to satisfy the creditor's claim for damages caused by non-performance or improper performance of an obligation, only on the ground that the amount of losses cannot be established with a reasonable degree of certainty. In this case, the amount of damages subject to compensation, including lost profits, is determined by the court, taking into account all the circumstances of the case, based on the principles of fairness and proportionality of liability to the committed violation of the obligation.

5. Within the meaning of Articles 15 and 393 of the Civil Code of the Russian Federation, the creditor shall submit evidence confirming the existence of losses, as well as substantiating with a reasonable degree of certainty their amount and the causal relationship between the debtor's failure to perform or improper performance of the obligation and the said losses. The debtor has the right to raise objections regarding the amount of losses caused to the creditor, and provide evidence that the creditor could reduce such losses, but did not take reasonable measures for this (Article 404 of the Civil Code of the Russian Federation).

When establishing a causal relationship between a breach of an obligation and losses, it is necessary to take into account, in particular, what consequences such a breach could lead to under normal conditions of civil circulation. If the occurrence of losses, the compensation of which is required by the creditor, is a normal consequence of the breach of obligation committed by the debtor, then the existence of a causal relationship between the breach and the losses proven by the creditor is presumed.

The debtor who refutes the creditor's arguments regarding the causal relationship between his behavior and the creditor's losses is not deprived of the opportunity to provide evidence of the existence of another reason for the occurrence of these losses.

The fault of the debtor in violation of the obligation is presumed until proven otherwise. The absence of guilt in non-performance or improper performance of an obligation is proved by the debtor (paragraph 2 of Article 401 of the Civil Code of the Russian Federation).

If the debtor is liable for breach of an obligation or for causing harm regardless of fault, then the burden of proving the circumstances that are the basis for exemption from such liability, for example, force majeure circumstances, is placed on him (clause 3 of article 401 of the Civil Code of the Russian Federation).

6. As a general rule, the parties to an obligation have the right, at their own discretion, to limit the liability of the debtor (Item 4 of Article 421 of the Civil Code of the Russian Federation).

The conclusion of such an agreement is not allowed and it is void if it violates a legislative prohibition (paragraph 2 of Article 400 of the Civil Code of the Russian Federation) or contradicts the essence of legislative regulation of the relevant type of obligation (for example, the terms of a security agreement or a transportation agreement on limiting the liability of a professional security services provider or a carrier are void only cases of intentional non-fulfillment or improper fulfillment of an obligation).

7. If, within the limits established by paragraph 4 of Article 401 of the Civil Code of the Russian Federation, circumstances are indicated in a previously concluded agreement that eliminate or limit the debtor's liability for an unintentional violation of an obligation, then the burden of proving their occurrence is placed on him.

An agreement concluded in advance on the elimination or limitation of liability does not exempt from liability for intentional breach of an obligation (paragraph 4 of Article 401 of the Civil Code of the Russian Federation). The absence of intent is proved by the person who violated the obligation (paragraphs 1 and 2 of Article 401 of the Civil Code of the Russian Federation). For example, to justify the absence of intent by the debtor, whose liability has been eliminated or limited by agreement of the parties, evidence may be presented that he showed at least a minimum degree of care and discretion in the performance of the obligation.

8. By virtue of paragraph 3 of Article 401 of the Civil Code of the Russian Federation, in order for a circumstance to be recognized as force majeure, it must be of an extraordinary and unavoidable nature under the given conditions.

The requirement of emergency implies the exclusivity of the circumstance under consideration, the occurrence of which is not usual in specific conditions.

Unless otherwise provided by law, a circumstance is recognized as unavoidable if any participant in civil turnover, carrying out activities similar to the debtor, could not have avoided the occurrence of this circumstance or its consequences.

Circumstances, the occurrence of which depended on the will or actions of the party to the obligation, cannot be recognized as force majeure, for example, the debtor's lack of the necessary funds, violation of obligations by its counterparties, illegal actions of its representatives.

9. The occurrence of force majeure circumstances does not in itself terminate the obligation of the debtor if performance remains possible after they have ceased to exist.

The obligee is not deprived of the right to withdraw from the contract if, due to the delay caused by the occurrence of force majeure circumstances, he has lost interest in performance. At the same time, the debtor is not liable to the creditor for losses caused by delay in the performance of obligations due to the occurrence of force majeure circumstances (paragraph 3 of Article 401, paragraph 2 of Article 405 of the Civil Code of the Russian Federation).

10. The debtor is obliged to take all reasonable measures to reduce the damage caused to the creditor by force majeure, including notifying the creditor of the occurrence of such a circumstance, and in case of failure to fulfill this obligation, to compensate the creditor for the losses caused by this (paragraph 3 of Article 307, paragraph 1 of Article 393 Civil Code of the Russian Federation).

Compensation for losses upon termination of the contract (Article 393 1 of the Civil Code of the Russian Federation)

11. Within the meaning of Article 393 1 of the Civil Code of the Russian Federation, paragraphs 1 and 2 of Article 405 of the Civil Code of the Russian Federation, the risks of changes in prices for comparable goods, works or services are assigned to the party whose non-performance or improper performance of the contract caused its early termination, for example, as a result of termination of the contract in court or unilateral refusal of the other party to fulfill the obligation.

In this case, losses in the form of the difference between the price established in the terminated contract and the current price shall be reimbursed by the relevant party, regardless of whether the other party concluded a similar (replacement) transaction instead of the terminated contract. If there is a current price for comparable goods, works or services in relation to the performance provided for by the terminated contract, the creditor has the right to demand compensation from the debtor for such losses even when he did not conclude a replacement transaction (paragraph 2 of article 393 1 of the Civil Code of the Russian Federation).

The current price is the price charged at the time of termination of the contract for comparable goods, works or services at the place where the contract was to be performed, and in the absence of a current price at the specified place, the price that was applied elsewhere and can serve as a reasonable substitute, taking into account transport and other additional costs.

12. If the creditor has entered into a replacement transaction in place of the terminated contract, he shall have the right to demand from the debtor compensation for losses in the form of the difference between the price established in the terminated contract and the price of comparable goods, works or services under the terms of the replacement transaction (clause 1 of Article 393 1 of the Civil Code of the Russian Federation ). The creditor may conclude several transactions that replace the terminated contract, or purchase similar goods or their substitutes in the same or another locality, etc.

The good faith of the creditor and the reasonableness of his actions when concluding a replacement transaction are assumed (paragraph 5 of article 10, paragraph 3 of article 307, article 393 1 of the Civil Code of the Russian Federation).

The debtor has the right to provide evidence that the creditor acted in bad faith and / or unreasonably and, by concluding a replacement transaction, intentionally or through negligence contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduce them (paragraph 1 of Article 404 of the Civil Code of the Russian Federation ). For example, the debtor has the right to provide evidence of an excessive discrepancy between the price of a replacement transaction and the current price determined at the time of its conclusion in accordance with the rules of paragraph 2 of Article 393 1 of the Civil Code of the Russian Federation.

13. The conclusion of a replacement transaction before the termination of the original obligation does not affect the obligor's obligation to perform performance in kind and the obligee's obligation to accept such performance (paragraph 3 of Article 308 of the Civil Code of the Russian Federation). The creditor is entitled to claim damages from the debtor in the form of the difference between the prices in the original contract and such a replacement transaction, provided that the original contract was subsequently terminated due to a breach of the obligation that caused the conclusion of this replacement transaction.

14. Satisfaction of the creditor's claims for the recovery of losses from the debtor in the form of the difference between the price established in the terminated contract and the current price or the price of a replacement transaction does not exempt the debtor from compensation for other losses caused to the creditor (Item 3 of Article 393 1 of the Civil Code of the Russian Federation).

Compensation for losses according to the rules of article 406 1 of the Civil Code of the Russian Federation

15. By virtue of paragraphs 1 and 5 of Article 406 1 of the Civil Code of the Russian Federation, by agreement of the parties to an obligation, the obligation of one of them to compensate for property losses of the other party that arose in the event of the occurrence of certain circumstances in any way related to the fulfillment, change or termination of an obligation, or its subject, and which are not a breach of the obligation.

Unlike compensation for losses under the rules of Articles 15 and 393 of the Civil Code of the Russian Federation, compensation for losses under the rules of Article 406 1 of the Civil Code of the Russian Federation is carried out regardless of the existence of a violation (non-performance or improper performance) of the obligation by the relevant party and regardless of the causal relationship between the behavior of this party and the losses subject to compensation caused by the occurrence of circumstances determined by the parties.

Within the meaning of Article 406 1 of the Civil Code of the Russian Federation, compensation for losses is allowed if it is proved that they have already been incurred or will inevitably be incurred in the future. In this case, the party demanding the payment of the relevant compensation must prove the existence of a causal relationship between the occurrence of the relevant circumstance and its losses.

The parties have the right to establish, in particular, such a procedure for determining the amount of losses, according to which one of the parties compensates the other for all the losses incurred by it, caused by the relevant circumstances, or part of them.

If the party, in favor of which compensation for losses is to be made, in bad faith contributed to the occurrence of the circumstance for which this compensation was established, for the purposes of applying Article 406 1 of the Civil Code of the Russian Federation, such a circumstance is considered not to have occurred (paragraph 4 of Article 1, paragraph 2 of Article 10 of the Civil Code of the Russian Federation).

16. An agreement on compensation for losses can be concluded only by the parties acting in the course of their entrepreneurial activities (clause 1 of Article 406 1 of the Civil Code of the Russian Federation), as well as by the persons indicated in clause 5 of Article 406 1 of the Civil Code of the Russian Federation.

The rights and obligations to compensate for losses based on an agreement concluded by such parties shall pass to a person who does not carry out entrepreneurial activity, both in case of universal and singular succession, unless otherwise provided by law or contract (Articles 387, 388, 391, 392 3 Civil Code of the Russian Federation).

These rights and obligations shall be preserved if the citizen loses the status of an individual entrepreneur after the conclusion of the said agreement, unless otherwise provided by law or contract.

17. When applying the provisions of Article 406 1 of the Civil Code of the Russian Federation, it should be taken into account that the agreement on compensation for losses must be explicit and unambiguous. Within the meaning of Article 431 of the Civil Code of the Russian Federation, if it is not clear what the agreement of the parties establishes - compensation for losses or conditions of liability for failure to fulfill an obligation, the provisions of Article 406 1 of the Civil Code of the Russian Federation are not subject to application.

As a general rule, the conclusion and validity of an agreement on compensation for losses provided for in Article 406 1 of the Civil Code of the Russian Federation are subject to assessment by the court, regardless of the conclusion and validity of the agreement in connection with which it was concluded, even if it is contained in this agreement in the form of its condition (clause) . For example, if an indemnification agreement is included as a condition in a sales contract, the invalidity or non-execution of this sales contract does not in itself entail the invalidity or non-conclusion of the indemnity agreement.

A separate agreement or a condition on compensation for losses included in the text of the contract may be declared invalid independently, for example, on the grounds provided for in Articles 168 - 179 of the Civil Code of the Russian Federation. In this case, the agreement on indemnification does not entail the consequences to which it was directed.

18. If the losses subject to compensation arose in connection with the unlawful actions of a third party, the party that compensated for such losses is transferred from the other party to the claim to this third party for compensation for losses in the part not exceeding the amount of compensation made (paragraph 4 of article 406 1 of the Civil Code of the Russian Federation ).

An agreement on compensation for losses concluded in accordance with Article 406 1 of the Civil Code of the Russian Federation does not create obligations for persons not participating in it as parties, and therefore, if the amount of compensation for losses exceeds the amount of losses that are subject to compensation by a third party under the rules of Article 15 of the Civil Code of the Russian Federation, Articles 393 or 1064 of the Civil Code of the Russian Federation, the corresponding difference is not recoverable from such a third party (paragraph 3 of Article 308 of the Civil Code of the Russian Federation).

Liability for negotiating in bad faith (Article 434 1 of the Civil Code of the Russian Federation)

19. The norms of Chapter 59 of the Civil Code of the Russian Federation with the exceptions established by Article 434 1 of the Civil Code of the Russian Federation shall apply to relations related to the infliction of harm by unfair behavior during negotiations. For example, a legal entity or a citizen compensates for the damage caused by the unfair behavior of its employee during negotiations (Article 1068 of the Civil Code of the Russian Federation). In the event that harm during negotiations is caused by several counterparties jointly, they are jointly and severally liable to the victim (Article 1080 of the Civil Code of the Russian Federation).

It is assumed that each of the parties to the negotiations acts in good faith and the termination of negotiations without specifying the reasons for the refusal does not in itself indicate the bad faith of the respective party. The plaintiff has the burden of proving that, when entering into negotiations, the defendant acted in bad faith with the aim of causing harm to the plaintiff, for example, trying to obtain commercial information from the plaintiff or to prevent the conclusion of a contract between the plaintiff and a third party (paragraph 5 of article 10, paragraph 1 of article 421 and paragraph 1 of Article 434 1 of the Civil Code of the Russian Federation). In this case, the rule of paragraph 2 of Article 1064 of the Civil Code of the Russian Federation does not apply.

At the same time, bad faith of the defendant's actions is assumed if there are circumstances provided for by subparagraphs 1 and 2 of paragraph 2 of Article 434 1 of the Civil Code of the Russian Federation. In these cases, the defendant must prove the good faith of his actions.

20. A party that conducts or terminates negotiations on the conclusion of a contract in bad faith is obliged to compensate the other party for the losses caused by this.

As a result of compensation for damages caused by unfair conduct during negotiations, the victim must be placed in the position in which he would have been if he had not entered into negotiations with an unfair counterparty. For example, he may be compensated for the costs incurred in connection with the conduct of negotiations, the costs of preparing for the conclusion of the contract, as well as losses incurred in connection with the loss of the opportunity to conclude a contract with a third party (Article 15, paragraph 2 of Article 393, paragraph 3 of Article 434 1, paragraph one of clause 1 of Article 1064 of the Civil Code of the Russian Federation).

21. If the counterparty provided incomplete or false information to the negotiating party by its counterparty, or if the counterparty kept silent about the circumstances that, due to the nature of the contract, should have been brought to its attention, and the parties concluded an agreement, this party has the right to demand recognition of the transaction as invalid and compensation for the losses caused by such invalidity (Articles 178 or 179 of the Civil Code of the Russian Federation) or use the methods of protection specially provided for cases of violation of certain types of obligations, for example, Articles 495, 732, 804, 944 of the Civil Code of the Russian Federation.

If the specified actions of the counterparty to provide incomplete or inaccurate information served as the basis for the refusal of the party to conclude the contract, the latter has the right to demand compensation for losses in accordance with paragraph 3 of Article 434 1 of the Civil Code of the Russian Federation.

Liability for non-fulfillment of an obligation in kind

22. In accordance with paragraph 1 of Article 308 3 , Article 396 of the Civil Code of the Russian Federation, if the debtor fails to fulfill the obligation, the creditor has the right to demand in court the fulfillment of the obligation in kind, unless otherwise provided by the Civil Code of the Russian Federation, other laws or an agreement, or does not follow from the essence of the obligation. At the same time, it should be taken into account that, in accordance with Articles 309 and 310 of the Civil Code of the Russian Federation, the debtor is not entitled to arbitrarily refuse to properly perform the obligation.

When a creditor brings a claim for the debtor's performance of an obligation in kind, the court, based on the specific circumstances of the case, determines whether such performance is objectively possible.

When resolving the issue of the admissibility of forcing a debtor to perform an obligation in kind, the court takes into account not only the provisions of the Civil Code of the Russian Federation, another law or agreement, but also the essence of the corresponding obligation.

A claim for the performance of an obligation in kind cannot be dismissed in the event that proper protection of the violated civil right of the plaintiff is possible only by forcing the defendant to perform in kind and will not be secured by the recovery of damages from the defendant for failure to fulfill the obligation, for example, obligations to provide information, which only the defendant has, or for the preparation of documentation that only the defendant is authorized to draw up.

23. Within the meaning of paragraph 1 of Article 308 3 of the Civil Code of the Russian Federation, the creditor is not entitled to demand in court from the debtor the performance of an obligation in kind, if such performance is objectively impossible, in particular, in the event of the destruction of an individually defined thing that the debtor was obliged to transfer to the creditor, or lawful adoption by a public authority or local government of an act that would be contrary to such performance of an obligation.

At the same time, the fact that the debtor does not have the number of things defined by generic characteristics that he is obliged to provide to the creditor under the contract does not in itself exempt him from fulfilling the obligation in kind, if it is possible by acquiring the required amount of goods from third parties (paragraphs 1, 2 of Article 396, paragraph 2 of Article 455 of the Civil Code of the Russian Federation).

The creditor is also not entitled to demand in court the performance of an obligation in kind, the performance of which is so connected with the personality of the debtor that its enforcement would violate the principle of respect for the honor and dignity of a citizen. For example, the requirement to compel an individual to fulfill in kind the obligation to perform a musical work at a concert is not subject to satisfaction.

In cases where the creditor cannot demand the performance of the obligation in kind by the court, the debtor is obliged to compensate the creditor for the losses caused by the failure to fulfill the obligation, if there are no grounds for terminating the obligation, for example, provided for in paragraph 1 of Article 416 and paragraph 1 of Article 417 of the Civil Code of the Russian Federation (Article 15 , paragraph 2 of Article 396 of the Civil Code of the Russian Federation).

24. If the performance of an obligation in kind is possible, the creditor, at its discretion, has the right either to demand such performance in court, or to refuse to accept the performance (clause 2 of Article 405 of the Civil Code of the Russian Federation) and, instead of performing the obligation in kind, apply to the court with a claim for compensation losses caused by non-fulfillment of an obligation (paragraphs 1 and 3 of Article 396 of the Civil Code of the Russian Federation). The presentation of a demand for the performance of an obligation in kind does not deprive him of the right to demand compensation for losses, penalties for delay in the performance of the obligation.

25. In the presence of the circumstances specified in Article 397 of the Civil Code of the Russian Federation, the creditor shall have the right, at his own discretion, to entrust the fulfillment of the obligation to a third party at a reasonable price within a reasonable time, or to fulfill it on his own and demand reimbursement of expenses and other losses from the debtor. This rule does not deprive the obligee of the opportunity, at his choice, to use another method of protection, for example, to demand from the obligor the performance of his obligation in kind or compensation for losses caused by non-performance of the obligation.

26. In case of non-fulfillment of the obligation to transfer an individually defined thing to the creditor, the latter has the right, at his choice, to demand that this thing be taken away from the debtor and its transfer on the conditions stipulated by the obligation, or instead demand compensation for losses (Article 398 of the Civil Code of the Russian Federation).

If the thing has not yet been transferred, the right to take it away from the debtor belongs to that of the creditors in whose favor the obligation arose earlier, and if this cannot be established, to the one who earlier filed an action for the taking away of the thing from the debtor.

Within the meaning of Article 398 of the Civil Code of the Russian Federation, if the debtor does not have an individually defined thing that is subject to transfer to the creditor, the creditor is not entitled to demand that it be taken away from the debtor and transferred in accordance with the terms of the contract, which does not deprive the creditor of the right to demand compensation from the debtor for damages caused by non-performance contracts.

At the same time, the transfer of an individually defined thing, in particular, for rent, for gratuitous use, for storage does not prevent the satisfaction of the claim of the creditor - the acquirer of this thing to the debtor - the alienator for the fulfillment of the obligation to transfer the thing into ownership. In this case, the lessee, the borrower, the custodian, etc. are involved in the case.

If the right to demand the receipt from the debtor of an individually defined thing, the transfer of the right to which is not subject to state registration, belonged to different creditors, and the thing was transferred to one of them in ownership, economic management or operational management, then other creditors are not entitled to demand that the debtor transfer the thing according to the rules of Article 398 of the Civil Code of the Russian Federation.

27. Satisfying the creditor's claim for compulsion to fulfill the obligation in kind, the court is obliged to establish the period during which the decision must be executed (Part 2 of Article 206 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Code of Civil Procedure of the Russian Federation), Part 2 of Article 174 of the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the APC of the Russian Federation).

28. On the basis of paragraph 1 of Article 308 3 of the Civil Code of the Russian Federation, in order to induce the debtor to timely fulfill an obligation in kind, including implying that the debtor refrains from performing certain actions, as well as to execute a judicial act providing for the elimination of a violation of property rights that is not related to deprivation possession (Article 304 of the Civil Code of the Russian Federation), the court may award funds in case of non-execution of the relevant judicial act in favor of the creditor-collector (hereinafter referred to as the court penalty).

The payment of a court penalty does not entail the termination of the main obligation, does not relieve the debtor from its performance in kind, as well as from the application of liability measures for its non-performance or improper performance (clause 2 of Article 308 3 of the Civil Code of the Russian Federation).

The amount of the court penalty is not taken into account when determining the amount of losses caused by non-fulfillment of an obligation in kind: such losses are subject to compensation in excess of the amount of the court penalty (Item 1 of Article 330, Article 394 of the Civil Code of the Russian Federation).

The accrual of interest provided for by Article 395 of the Civil Code of the Russian Federation on the amount of a court penalty is not allowed.

29. An agreement entered into in advance on the creditor's waiver of the right to demand the award of a court penalty is invalid if, by virtue of a law or contract, or by virtue of the nature of the obligation, the creditor is not deprived of the right to demand performance of the obligation in kind (Item 1 of Article 308 3 of the Civil Code of the Russian Federation). However, the parties are entitled, after violating the time period established by the court for the performance of the obligation in kind, to conclude at the stage of enforcement proceedings a settlement agreement on the termination of the obligation to pay a court penalty by providing compensation (Article 409 of the Civil Code of the Russian Federation), novation (Article 414 of the Civil Code of the Russian Federation) or forgiveness of the debt (Article 415 of the Civil Code of the Russian Federation).

30. The rules of paragraph 1 of Article 308 3 of the Civil Code of the Russian Federation do not apply to cases of non-fulfillment of monetary obligations.

Since, within the meaning of paragraph 1 of Article 308 3 of the Civil Code of the Russian Federation, a court penalty can only be awarded in case of non-fulfillment of civil obligations, it cannot be established for disputes of an administrative nature, considered in the course of administrative proceedings and Chapter 24 of the APC of the Russian Federation, when resolving labor, pension and family disputes arising from personal non-property relations between family members, as well as disputes related to social support.

31. The court is not entitled to refuse to award a court penalty if the claim for compulsion to fulfill the obligation in kind is satisfied.

A court penalty may be awarded only at the request of the plaintiff (collector) both simultaneously with the issuance of a decision by the court on compulsion to fulfill the obligation in kind, and subsequently during its execution within the framework of enforcement proceedings (part 4 of article 1 of the Code of Civil Procedure of the Russian Federation, parts 1 and 2 1 article 324 of the Arbitration Procedure Code of the Russian Federation).

32. Satisfying the claims of the plaintiff for the award of a court penalty, the court indicates its amount and/or the procedure for determining it.

The amount of the court penalty is determined by the court on the basis of the principles of fairness, proportionality and the inadmissibility of the debtor benefiting from illegal or dishonest behavior (paragraph 4 of Article 1 of the Civil Code of the Russian Federation). As a result of the award of a court penalty, the execution of a judicial act must be clearly more beneficial for the defendant than its non-execution.

33. On the basis of a judicial act on compulsion to fulfill an obligation in kind and on the award of a court penalty, separate writ of execution is issued in respect of each of these claims. A judicial act in terms of the recovery of a court penalty is subject to compulsory execution only after the expiration of the period specified by the court for the fulfillment of the obligation in kind.

The fact of non-execution or improper execution of the court decision is established by the bailiff. Such a fact cannot be established by a bank or other credit institution.

34. If there are circumstances that objectively prevent the execution of a judicial act on compulsion to perform in kind within the time period established by the court (clause 3 of Article 401 of the Civil Code of the Russian Federation), the defendant has the right to file an application for a delay or installment plan for the execution of a judicial act (Articles 203, 434 of the Code of Civil Procedure of the Russian Federation, Article 324 of the Arbitration Procedure Code of the Russian Federation).

If the demand for a delay (installment plan) of the execution of a judicial act is satisfied, the court determines the period during which the court penalty is not subject to accrual. The specified period is calculated from the moment of the occurrence of the circumstances that served as the basis for the postponement (installment plan) of the execution of the judicial act, and is set for the period necessary for the execution of the judicial act.

The debtor is also not obliged to pay a court penalty from the moment the creditor unlawfully refuses to accept the proper performance proposed by the debtor (Article 406 of the Civil Code of the Russian Federation).

35. If the objective impossibility of fulfilling an obligation in kind has arisen after the award of a court penalty, then such penalty shall not be recoverable from the moment such a circumstance arises. At the same time, such an inherent objective impossibility of fulfilling an obligation in kind, for example, the destruction of an individually defined thing to be transferred to the creditor, does not prevent the recovery of the amounts of the court penalty awarded for the period preceding the occurrence of this circumstance.

The occurrence of these circumstances is the basis for the termination of enforcement proceedings both on the demand for compulsion to execution in kind, and on the demand for the recovery of a court penalty (hereinafter referred to as the Law on Enforcement Proceedings).

36. In case of universal succession on the side of the debtor, the obligation to pay the court penalty passes to the debtor's successor in full.

Liability for failure to fulfill a monetary obligation (Article 395 of the Civil Code of the Russian Federation)

37. Interest provided for in paragraph 1 of Article 395 of the Civil Code of the Russian Federation is payable regardless of the basis for the occurrence of the obligation (agreement, other transactions, causing harm, unjust enrichment or other grounds specified in the Civil Code of the Russian Federation).

Since Article 395 of the Civil Code of the Russian Federation provides for the consequences of non-fulfillment or delay in fulfillment of a monetary obligation, the provisions of this rule do not apply to the relations of the parties that are not related to the use of money as a means of payment (means of repaying a monetary debt). For example, they do not apply to monetary obligations for the delivery of cash to the bank under a cash service agreement, for the transportation of banknotes, etc.

38. In cases where the dispute resolved by the court arises from tax or other financial and administrative legal relations, civil law may be applied to these legal relations, provided that this is provided for by law (paragraph 3 of Article 2 of the Civil Code of the Russian Federation).

In this regard, the interest specified in Article 395 of the Civil Code of the Russian Federation is not accrued on the amounts of economic (financial) sanctions unreasonably collected from legal entities and individuals by tax, customs, pricing authorities and other state bodies, and subject to return from the relevant budget.

In these cases, citizens and legal entities, on the basis of Articles 15, 16 and 1069 of the Civil Code of the Russian Federation, may file claims for damages caused, among other things, by the unreasonable collection of amounts of economic (financial) sanctions, unless otherwise provided by law.

39. According to paragraph 1 of Article 395 of the Civil Code of the Russian Federation, the amount of interest for the use of other people's funds is determined, as a general rule, by existing at the place of residence of the creditor or, if the creditor is a legal entity, at its location, published by the Bank of Russia and taking place in the relevant periods average bank interest rates on deposits of individuals. A different amount of interest may be established by law or by agreement.

Sources of information on average bank interest rates on deposits of individuals are the official website of the Bank of Russia on the Internet and the official publication of the Bank of Russia "Bulletin of the Bank of Russia".

In cases where a monetary obligation is payable in rubles in an amount equivalent to a certain amount in a foreign currency or in conventional monetary units, as well as when, in accordance with the legislation on currency regulation and currency control, when making payments on obligations, it is allowed to use foreign currency and a monetary obligation expressed in it (paragraphs 2, 3 of Article 317 of the Civil Code of the Russian Federation), interest is calculated on the basis of bank interest rates published on the official website of the Bank of Russia or in the Bulletin of the Bank of Russia on deposits of individuals in the relevant currency.

If the average rate in rubles or foreign currency for a certain period is not published, the amount of interest to be collected is determined based on the latest published rate for each of the periods of delay.

When there are no such publications, the amount of interest to be collected is calculated on the basis of a certificate from one of the leading banks in the location of the creditor, confirming the average rate applied by him on short-term deposits of individuals.

40. Calculation of interest provided for by Article 395 of the Civil Code of the Russian Federation is carried out at the rates published for the federal district in whose territory at the time of the conclusion of the agreement, the conclusion of a unilateral transaction or the emergence of an obligation from non-contractual relations, the place of residence of the creditor was located, and if the creditor is a legal entity, - its location (paragraph 2 of article 307, paragraph 2 of article 316 of the Civil Code of the Russian Federation).

If the creditor is an organization that has branches, then the calculation of interest for non-fulfillment of a monetary obligation, which is contained in an agreement arising from the activities of the branch and concluded by an employee of the branch on behalf of the organization - creditor, is based on the rates for the federal district at the location of the branch at the time of conclusion of the agreement (Clause 2 of Article 54, Clause 2, Paragraph 3 of Clause 3 of Article 55 of the Civil Code of the Russian Federation).

If the creditor is a person whose place of residence (location) is outside the Russian Federation, interest is calculated at the rates published by the Bank of Russia for the federal district at the location of the Russian court considering the dispute.

41. The amount of interest established by Article 395 of the Civil Code of the Russian Federation shall be included in the amount of losses caused by non-performance or improper performance of a monetary obligation (clause 1 of Article 394 and clause 2 of Article 395 of the Civil Code of the Russian Federation).

42. If a forfeit is established by law or by agreement of the parties for breach of a monetary obligation, to which the rule of paragraph one of paragraph 1 of Article 394 of the Civil Code of the Russian Federation applies, then the provisions of paragraph 1 of Article 395 of the Civil Code of the Russian Federation do not apply. In this case, the forfeit established by law or by agreement of the parties, and not the interest provided for by Article 395 of the Civil Code of the Russian Federation (clause 4 of Article 395 of the Civil Code of the Russian Federation), is subject to collection.

43. If a creditor has filed a claim for the recovery of interest exclusively on the basis of Article 395 of the Civil Code of the Russian Federation in connection with the non-fulfillment or delay in the performance of a monetary obligation, in respect of which the rules on the claim procedure established by law or the contract apply, consideration of such a claim on the merits is possible only after compliance with the rules on claim procedure.

If the creditor complied with the claim procedure in respect of the amount of the principal debt, the claim procedure in respect of interest charged on the basis of Article 395 of the Civil Code of the Russian Federation is also considered to be complied with.

Similar rules apply when collecting penalties, interest provided for in Article 317 1 of the Civil Code of the Russian Federation, etc.

44. If the debtor, using the right granted by Article 327 of the Civil Code of the Russian Federation, has deposited the money due from him into the notary's deposit, and in the cases established by law - into the court's deposit, within the period provided for by the obligation, the monetary obligation is considered to be fulfilled in a timely manner (Item 2 of Article 327 of the Civil Code RF) and interest, including those provided for in Article 395 of the Civil Code of the Russian Federation, are not charged on the amount of the debt.

The crediting of funds to the deposit account of the bailiff unit in the manner prescribed by Article 70 of the Law on Enforcement Proceedings testifies to the proper fulfillment by the debtor of a monetary obligation to the creditor, confirmed by a court decision, in connection with which, from the date of such crediting, the interest provided for in Article 395 of the Civil Code of the Russian Federation, the amount of funds credited is not charged.

Upon return to the debtor of funds deposited, the obligation is not considered fulfilled (clause 3 of Article 327 of the Civil Code of the Russian Federation), and the interest provided for in Article 395 of the Civil Code of the Russian Federation is subject to accrual on the amount of the debt from the date of the delay, including the period the funds were on deposit.

45. The debtor's lack of funds is not a basis for exemption from liability for failure to fulfill a monetary obligation and the accrual of interest established by Article 395 of the Civil Code of the Russian Federation (clause 1 of Article 401 of the Civil Code of the Russian Federation).

46. ​​The courts must take into account that, according to Article 403 of the Civil Code of the Russian Federation, in the event of a violation of a monetary obligation, the execution of which was assigned to third parties, the interest provided for in Article 395 of the Civil Code of the Russian Federation is collected not from these persons, but from the debtor on the same grounds as for own violations, unless the law establishes that such liability is borne by a third party who is the direct executor.

47. The debtor shall be exempt from paying interest provided for in Article 395 of the Civil Code of the Russian Federation in the event that the creditor refused to accept the proper performance proposed by the debtor or did not take actions provided for by law, other legal acts or an agreement or arising from customs or from the essence of the obligation, before the performance which the debtor could not fulfill his obligation, for example, did not provide data on the account to which the funds should be credited, etc. (Clause 3 of Article 405, Clause 3 of Article 406 of the Civil Code of the Russian Federation).

48. The amount of interest to be collected in accordance with the rules of Article 395 of the Civil Code of the Russian Federation is determined on the day the court makes a decision based on the periods that took place before the specified day. Interest for the use of other people's funds at the request of the plaintiff shall be charged on the day of payment of these funds to the creditor. Simultaneously with the establishment of the amount of interest to be collected, the court, if there is a claim by the plaintiff in the operative part of the decision, indicates the collection of interest until the actual fulfillment of the obligation (paragraph 3 of Article 395 of the Civil Code of the Russian Federation). In this case, the day of the actual fulfillment of the obligation, in particular the payment of the debt to the creditor, is included in the interest calculation period.

The calculation of interest accrued after the decision is made is carried out in the process of its execution by a bailiff, and in cases established by law, by other bodies, organizations, including treasury bodies, banks and other credit organizations, officials and citizens (part 1 article 7, article 8, point 16 of part 1 of article 64 and part 2 of article 70 of the Law on Enforcement Proceedings). The amount of interest is determined according to the average rates of bank interest on deposits of individuals that took place in the relevant periods after the decision was made (paragraph 1 of Article 395 of the Civil Code of the Russian Federation).

In case of ambiguity, the bailiff, other persons executing the judicial act have the right to apply to the court for an explanation of its execution, including on the question of exactly what amount is to be recovered from the debtor (Article 202 of the Code of Civil Procedure of the Russian Federation, Article 179 of the Arbitration Procedure Code of the Russian Federation) .

As a general rule, the provisions of Article 333 of the Civil Code of the Russian Federation do not apply to the amount of interest charged under paragraph 1 of Article 395 of the Civil Code of the Russian Federation (paragraph 6 of Article 395 of the Civil Code of the Russian Federation).

49. Based on the provisions of Article 319 of the Civil Code of the Russian Federation on the order of repayment of claims under a monetary obligation, if the amount of the payment made is insufficient, the courts should take into account that interest repaid before the principal amount of the debt means interest for the use of funds payable under a monetary obligation, in particular, interest on the use of the amount of a loan, credit, advance payment, prepayment, etc. (Articles 317 1, 809, 823 of the Civil Code of the Russian Federation).

Interest provided for by Article 395 of the Civil Code of the Russian Federation for non-fulfillment or delay in fulfilling a monetary obligation does not apply to the interest indicated in Article 319 of the Civil Code of the Russian Federation and is repaid after the amount of the principal debt.

The provisions of Article 319 of the Civil Code of the Russian Federation do not deprive the creditor of the right, before repayment of the principal amount of the debt, to file a claim for the recovery from the debtor of a penalty or interest collected on the basis of Article 395 of the Civil Code of the Russian Federation.

50. From the date of delay in the fulfillment of monetary obligations arising from contracts, interest specified in Article 395 of the Civil Code of the Russian Federation is accrued, except in cases where a penalty for violation of this obligation is provided for by agreement of the parties or by law, for example, part 5 of Article 34 of the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (paragraphs 1 and 4 of Article 395 of the Civil Code of the Russian Federation).

51. At the request of one party to a monetary obligation to return the obligation fulfilled in connection with this obligation, for example, in case of excessive payment for goods, works, services, interest is accrued on the overpaid amount, provided for in Article 395 of the Civil Code of the Russian Federation, from the day when the party that received the specified funds found out or should have known about these circumstances (paragraph 3 of article 307, paragraph 1 of article 424, subparagraph 3 of article 1103, article 1107 of the Civil Code of the Russian Federation).

52. Non-fulfillment by the debtor of the monetary obligation provided for by the amicable agreement, which is approved by the court, is the basis for the application of liability under the rules of Article 395 of the Civil Code of the Russian Federation from the day following the last day of the period established in the agreement for its voluntary fulfillment, unless another penalty is established by the amicable agreement for its violation, or no other moment for the start of interest accrual has been determined (Part 1 of Article 39, Part 3 of Article 173 of the Code of Civil Procedure of the Russian Federation, Part 1 of Article 142 of the APC of the Russian Federation, Clause 1 of Article 405 of the Civil Code of the Russian Federation).

If the amicable agreement retains the condition of the agreement on the accrual of a penalty for non-fulfillment of monetary obligations under this agreement, then the interest established by Article 395 of the Civil Code of the Russian Federation is not accrued (clause 5 of Article 395 of the Civil Code of the Russian Federation).

53. Unlike the interest provided for in paragraph 1 of Article 395 of the Civil Code of the Russian Federation, the interest established by Article 317 1 of the Civil Code of the Russian Federation is not a measure of liability, but is a payment for the use of funds. In this regard, when resolving disputes on the collection of interest, the court must establish whether the plaintiff's demand for the payment of interest is a demand for payment for the use of funds (Article 317 1 of the Civil Code of the Russian Federation) or the requirement is declared on the application of liability for non-fulfillment or delay in the fulfillment of a monetary obligation (Article 395 of the Civil Code of the Russian Federation). RF). The accrual of interest from the beginning of the delay under Article 395 of the Civil Code of the Russian Federation does not affect the calculation of interest under Article 317 1 of the Civil Code of the Russian Federation.

54. In the event that the buyer does not pay in a timely manner for the goods transferred under the sale and purchase agreement, including those supplied through the connected network for electricity and heat, gas, oil, oil products, water, other goods (for the actually accepted amount of goods in accordance with the data accounting), in accordance with paragraph 3 of Article 486, paragraph one of paragraph 4 of Article 488 of the Civil Code of the Russian Federation, the measure of responsibility established by Article 395 of the Civil Code of the Russian Federation is applied to the buyer: on the amount the payment of which is overdue, the buyer is obliged to pay interest from the day when, under the contract, the goods must be paid until the day the buyer pays for the goods, unless otherwise provided by the Civil Code of the Russian Federation or the contract of sale.

55. If an invalid transaction is executed by both parties, then when considering a claim for the application of the consequences of its invalidity, it must be taken into account that, within the meaning of paragraph 2 of Article 167 of the Civil Code of the Russian Federation, mutual grants made by the parties are considered equal until proven otherwise, and their return must be made simultaneously , in connection with which the interest established by Article 395 of the Civil Code of the Russian Federation is not charged on the amount of the returned funds.

At the same time, if there is evidence confirming that the amount of money received by one of the parties clearly exceeds the value transferred to the other party, the rules on unjust enrichment may be applied to the relations of the parties (subparagraph 1 of Article 1103, Article 110 of the Civil Code of the Russian Federation). In this case, the difference between the specified amount and the amount equivalent to the value of the transferred to the other party shall accrue interest, provided for in Article 395 of the Civil Code of the Russian Federation, from the moment when the acquirer found out or should have found out about the groundlessness of receiving or saving money.

56. In the event that, during bilateral restitution, one party returned previously received to the other party, for example, an individually defined thing, and the other party did not return the funds transferred to it, then from that moment on, interest is charged on the amount of unreturned funds on the basis of Article 395 of the Civil Code of the Russian Federation (Article 1103, paragraph 2 of Article 1107 of the Civil Code of the Russian Federation).

57. The obligation of the tortfeasor to pay interest, provided for in Article 395 of the Civil Code of the Russian Federation, arises from the date of entry into force of the court decision, which satisfied the claim of the victim for compensation for the losses incurred, unless otherwise specified in the law, in case of delay in payment by the debtor.

When the injured party and the tortfeasor conclude an agreement on compensation for damages, the interest established by Article 395 of the Civil Code of the Russian Federation shall accrue from the first day of delay in fulfilling the terms of this agreement, unless otherwise provided by such an agreement.

58. In accordance with paragraph 2 of Article 1107 of the Civil Code of the Russian Federation, the amount of unjust enrichment is subject to the accrual of interest established by paragraph 1 of Article 395 of the Civil Code of the Russian Federation from the moment when the acquirer knew or should have known about the unreasonableness of receiving or saving funds. In particular, such a moment should be considered the presentation by the bank of an extract on the transactions carried out on the account or other information on the movement of funds on the account in the manner prescribed by the banking rules and the bank account agreement.

In itself, receiving information about the receipt of funds in a non-cash form (by crediting funds to his bank account) without specifying the payer or the purpose of the payment does not mean that the recipient knew or should have known about the groundlessness of their receipt.

59. If, in pursuance of a judicial act, the defendant transferred funds to the creditor, and subsequently this judicial act was canceled or changed in terms of the recovery of these funds, and the funds received by the claimant were not returned to the debtor, then, as a general rule, interest is charged on the named amount of money , established by Article 395 of the Civil Code of the Russian Federation, from the moment the final judicial act enters into force (paragraph 2 of Article 1107 of the Civil Code of the Russian Federation).

At the same time, taking into account the circumstances of a particular case, for example, if there was a falsification of evidence and this led to the adoption of a decision that served as the basis for the transfer of funds to him, the interest provided for in Article 395 of the Civil Code of the Russian Federation is subject to accrual from an earlier moment, for example, from the moment the funds are credited funds to the settlement account of an unscrupulous claimant (paragraphs 3.4 of Article 1, paragraph 2 of Article 1107 of the Civil Code of the Russian Federation).

forfeit

60. In case of non-fulfillment or improper fulfillment of an obligation, in particular in case of delay in fulfillment, the law or the contract may provide for the obligation of the debtor to pay the creditor a certain amount of money (forfeit), the amount of which can be set in a fixed amount - a fine or in the form of a periodically accrued payment - penalties (paragraph 1 of Article 330 of the Civil Code of the Russian Federation).

According to paragraph 1 of Article 394 of the Civil Code of the Russian Federation, if a penalty is established for non-fulfillment or improper fulfillment of an obligation, then losses are compensated in the part not covered by the penalty (set-off penalty). The law or the contract may provide for cases where it is allowed to recover only the penalty, but not damages (exclusive penalty), or when losses can be recovered in full in excess of the penalty (penalty), or when, at the option of the creditor, either a penalty or damages (alternative penalty).

If other property defined by generic characteristics is named as a penalty in the agreement of the parties, then, given that, by virtue of the provisions of Article 329 of the Civil Code of the Russian Federation, the list of methods for securing the fulfillment of obligations is not exhaustive, the rules of Articles 329 - 333 of the Civil Code of the Russian Federation are applied to such a method of securing obligations ( paragraph 1 of Article 6 of the Civil Code of the Russian Federation).

61. If the amount of the penalty is established by law, then by virtue of paragraph 2 of Article 332 of the Civil Code of the Russian Federation, it cannot be reduced by agreement of the parties in advance, but can be increased if such an increase is not prohibited by law. For example, it is not allowed to increase the amount of penalties established by Part 14 of Article 155 of the Housing Code of the Russian Federation for late and / or incomplete payment by persons of payment for housing and utilities.

62. In the event of a breach of the principal obligation, the obligation to pay a legal penalty may be terminated by providing compensation (Article 409 of the Civil Code of the Russian Federation), novation (Article 414 of the Civil Code of the Russian Federation) or forgiveness of the debt (Article 415 of the Civil Code of the Russian Federation) contained, among other things, in an amicable agreement.

63. An agreement on a penalty must be concluded in writing in accordance with the rules established by paragraphs 2, 3 of Article 434 of the Civil Code of the Russian Federation, regardless of the form of the main obligation (Article 331 of the Civil Code of the Russian Federation).

Failure to comply with the written form of such an agreement entails its nullity (paragraph 2 of Article 162, Article 331, paragraph 2 of Article 168 of the Civil Code of the Russian Federation).

64. The invalidity of the agreement from which the main obligation arose, as a general rule, entails the invalidity of agreements on measures of civil liability for violation of this obligation, including the penalty.

By agreement of the parties, a penalty may be provided in case of failure to fulfill the obligation to return property received under an invalid transaction. The invalidity or non-conclusion of the contract in connection with which an agreement on such a penalty was concluded, including when it is included in the contract in the form of a condition (clause), within the meaning of paragraph 3 of Article 329 of the Civil Code of the Russian Federation, does not in itself entail the invalidity or non-conclusion of the condition on the penalty .

At the same time, a separate agreement or a forfeit clause included in the text of the contract in case of failure to fulfill the obligation to return property received under an invalid transaction may be declared invalid on an independent basis (Articles 168 - 179 of the Civil Code of the Russian Federation). In this case, the specified agreement does not entail the consequences to which it was directed.

65. Within the meaning of Article 330 of the Civil Code of the Russian Federation, the plaintiff has the right to demand the award of a penalty until the day the obligation is actually fulfilled (in particular, the actual payment of funds to the creditor, the transfer of goods! Completion of work). A law or an agreement may establish a shorter period for calculating the penalty, or its amount may be limited (for example, paragraph 6 of Article 161 of the Federal Law of April 25, 2002 N 40-FZ "On Compulsory Insurance of Civil Liability of Vehicle Owners" (hereinafter - OSAGO law).

When awarding a forfeit, the court, at the request of the plaintiff, in the operative part of the decision indicates the amount of the forfeit calculated on the date of the decision and subject to collection, as well as the fact that such collection is made before the moment of actual fulfillment of the obligation.

The calculation of the amount of the penalty accrued after the decision is made is carried out in the process of execution of the judicial act by the bailiff, and in cases established by law, by other bodies, organizations, including treasury bodies, banks and other credit organizations, officials and citizens ( part 1 of article 7, article 8, point 16 of part 1 of article 64 and part 2 of article 70 of the Law on Enforcement Proceedings). In case of ambiguity, the bailiff, other persons executing the judicial act have the right to apply to the court for an explanation of its execution, including on the question of exactly what amount is to be recovered from the debtor (Article 202 of the Code of Civil Procedure of the Russian Federation, Article 179 of the Arbitration Procedure Code of the Russian Federation) .

In this case, the day of the actual performance of the violated obligation, in particular, the day of payment of the debt to the creditor, is included in the period for calculating the penalty.

66. As a general rule, if upon termination of the contract the main obligation is terminated, the penalty is charged until the termination of this obligation (paragraph 4 of Article 329 of the Civil Code of the Russian Federation). For example, the seller's refusal to agree to the purchase and sale of a vehicle sold by installments terminates the buyer's obligation to pay for the goods and, accordingly, releases him from further charging a penalty for late payment for the goods (paragraph 2 of Article 489 of the Civil Code of the Russian Federation).

If, upon termination of the contract, the main obligation does not terminate, for example, when transferring property for rent, loan, loan and credit, and the obligation of the debtor to return the received property to the creditor and to pay the appropriate fee for the use of property remains, then not only the payments established by the contract for use of property, but also a penalty for late payment (Article 622, Article 689, Clause 1 of Article 811 of the Civil Code of the Russian Federation).

Similarly, if the consumer refuses to fulfill the contract of sale due to the discovery of defects in the goods transferred under the contract, the seller's obligation to pay the penalty remains until the seller returns the amount paid for the goods (Article 22, paragraph 1 of Article 23 of the Law on the Protection of Consumer Rights).

67. If the contract establishes a penalty for non-fulfillment of obligations related to the consequences of the termination of the main obligation, then the condition for the penalty remains in force even after the termination of the main obligation arising on the basis of this contract (paragraph 3 of Article 329 of the Civil Code of the Russian Federation).

68. The expiration of the term of the contract does not entail the termination of all obligations under the contract, in particular the obligations of the parties to pay a penalty for breach of obligations, unless otherwise provided by law or the contract (paragraphs 3, 4 of Article 425 of the Civil Code of the Russian Federation).

Reducing the penalty by the court (Article 333 of the Civil Code of the Russian Federation)

69. The penalty payable, established by law or contract, in the event of its obvious disproportion to the consequences of the breach of obligation, may be reduced in court (paragraph 1 of Article 333 of the Civil Code of the Russian Federation).

The pre-established terms of the agreement on the non-application or restriction of the application of Article 333 of the Civil Code of the Russian Federation are void (paragraphs 1 and 4 of Article 1, paragraph 1 of Article 15 and paragraph 2 of Article 168 of the Civil Code of the Russian Federation).

70. Within the meaning of Articles 332, 333 of the Civil Code of the Russian Federation, the establishment in the contract of the maximum or minimum amount (upper or lower limit) of the penalty is not an obstacle to reducing it by the court.

71. If the debtor is a commercial organization, an individual entrepreneur, as well as a non-profit organization when it carries out income-generating activities, the court may reduce the penalty only upon a reasoned application of such a debtor, which can be made in any form (paragraph 1 of article 2, paragraph 1 of article 6 , paragraph 1 of Article 333 of the Civil Code of the Russian Federation).

When recovering a penalty from other persons, the rules of Article 333 of the Civil Code of the Russian Federation can be applied not only at the request of the debtor, but also at the initiative of the court, if there is an obvious disproportion of the penalty to the consequences of the violation of the obligation (Clause 1 of Article 333 of the Civil Code of the Russian Federation). In this case, the court, when considering the case, submits for discussion the circumstances that testify to such disproportion (Article 56 of the Code of Civil Procedure of the Russian Federation, Article 65 of the Arbitration Procedure Code of the Russian Federation). If there is evidence in the case confirming the obvious disproportion of the penalty to the consequences of the breach of obligation, the court reduces the penalty in accordance with the rules of Article 333 of the Civil Code of the Russian Federation.

The defendant's statement that the penalty is clearly disproportionate to the consequences of breach of obligation is not in itself an admission of debt or the fact of breach of obligation.

72. The defendant's statement on the application of the provisions of Article 333 of the Civil Code of the Russian Federation can be made only when the case is considered by the court of first instance or by the court of appeal if he proceeded to consider the case according to the rules of procedure in the court of first instance (Part 5 of Article 330, Article 387 of the Code of Civil Procedure of the Russian Federation, part 61 of article 268, part 1 of article 286 of the Arbitration Procedure Code of the Russian Federation).

If the reduction of the penalty is allowed at the initiative of the court, then the issue of such a reduction may also be raised for discussion by the parties by the court of appeal, regardless of whether it proceeds to consider the case according to the rules of procedure in the court of first instance (parts 1 and 2 of Article 330 of the Code of Civil Procedure of the Russian Federation, parts 1 and 2 articles 270 of the Arbitration Procedure Code of the Russian Federation).

The grounds for the cancellation in cassation of a judicial act insofar as it relates to the reduction of the penalty under the rules of Article 333 of the Civil Code of the Russian Federation may be a violation or incorrect application of the norms of substantive law, which, in particular, include a violation of the requirements of paragraph 6 of Article 395 of the Civil Code of the Russian Federation, when the amount of the penalty for delay in fulfilling a monetary obligation, reduced below the limit established by paragraph 1 of Article 395 of the Civil Code of the Russian Federation, or a reduction in the penalty in the absence of an application in the cases established by paragraph 1 of Article 333 of the Civil Code of the Russian Federation (Article 387 of the Code of Civil Procedure of the Russian Federation, paragraph 2 of Part 1 of Article 287 of the APC of the Russian Federation).

73. The burden of proving the disproportionateness of the penalty and the unjustified benefit of the creditor lies with the defendant. The disproportionate and unjustified benefits may be expressed, in particular, in the fact that the possible amount of the creditor's losses that could arise as a result of a breach of obligation is significantly lower than the accrued penalty (part 1 of article 56 of the Code of Civil Procedure of the Russian Federation, part 1 of article 65 of the Arbitration Procedure Code of the Russian Federation).

The defendant's arguments about the impossibility of fulfilling the obligation due to the difficult financial situation, the presence of debts to other creditors, the seizure of funds or other property of the defendant, the lack of budget funding, default by counterparties, voluntary repayment of the debt in full or in part on the day the dispute is considered, the fulfillment by the defendant of social significant functions, the debtor's obligation to pay interest for the use of funds (for example, on the basis of Articles 3171, 809, 823 of the Civil Code of the Russian Federation) cannot in themselves serve as a basis for reducing the penalty.

74. When objecting to an application for a reduction in the amount of the penalty, the creditor is not obliged to prove the occurrence of losses (paragraph 1 of Article 330 of the Civil Code of the Russian Federation), but is entitled to provide evidence of the consequences of such violations of the obligation for the creditor acting reasonably and prudently under comparable circumstances, for example, indicate the change in average market indicators (interest rates on loans or market prices for certain types of goods in the relevant period, exchange rates, etc.).

75. When assessing the proportionality of the penalty to the consequences of the breach of an obligation, it must be taken into account that no one has the right to benefit from their illegal behavior, and also that the misuse of other people's money should not be more beneficial for the debtor than the conditions for fair use (paragraphs 3, 4 Article 1 of the Civil Code of the Russian Federation).

Evidence of the reasonableness of the amount of the penalty can serve, in particular, data on the average fee for short-term loans for working capital, issued by credit institutions to persons engaged in entrepreneurial activities, or fees for short-term loans issued to individuals, at the location of the creditor during the period of breach of obligation , as well as inflation rates for the relevant period.

Having established the grounds for reducing the amount of the penalty, the court reduces the amount of the penalty.

76. The rules of Article 333 of the Civil Code of the Russian Federation and paragraph 6 of Article 395 of the Civil Code of the Russian Federation do not apply when collecting interest accrued under Article 3171 of the Civil Code of the Russian Federation.

The rules of paragraph 6 of Article 395 of the Civil Code of the Russian Federation do not apply when reducing the penalty established for violation of a non-monetary obligation, unless otherwise provided by law.

77. A reduction in the amount of the contractual penalty payable by a commercial organization, an individual entrepreneur, as well as a non-profit organization that has violated an obligation in the course of its income-generating activities, is allowed in exceptional cases, if it is clearly disproportionate to the consequences of the violation of the obligation and may result in the creditor receiving unjustified benefits (paragraphs 1 and 2 of Article 333 of the Civil Code of the Russian Federation).

78. The rules for reducing the amount of the penalty on the basis of Article 333 of the Civil Code of the Russian Federation also apply in cases where the penalty is determined by law, for example, Articles 23, 231, paragraph 5 of Article 28, Articles 30 and 31 of the Law of the Russian Federation of February 7, 1992 N 2300- I "On Protection of Consumer Rights" (hereinafter referred to as the Consumer Rights Protection Law), paragraph 21 of Article 12 of the Law on OSAGO, the provisions of the Federal Law of January 10, 2003 N 18-FZ "Charter of Railway Transport of the Russian Federation", Article 16 of the Federal Law of December 29, 1994 N 79-FZ "On the state material reserve", paragraph 5 of Article 34 of the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs".

79. If, at the request of the creditor, a penalty is written off from the debtor's account (clause 2 of Article 847 of the Civil Code of the Russian Federation), as well as the amount of the penalty is set off against the amount of the principal debt and / or interest, the debtor has the right to raise the issue of applying to the written-off penalty the provisions of Article 333 of the Civil Code of the Russian Federation, for example, by presenting an independent demand for the return of overpaid (Article 1102 of the Civil Code of the Russian Federation).

At the same time, if the penalty payable was transferred by the debtor himself, he is not entitled to demand a reduction in the amount of such a penalty on the basis of Article 333 of the Civil Code of the Russian Federation (subparagraph 4 of Article 1109 of the Civil Code of the Russian Federation), unless he proves that the transfer of the penalty was involuntary , including due to the creditor's abuse of its dominant position.

80. If claims are made for the recovery of a penalty established by an agreement in the form of a combination of a fine and a penalty fee for one violation, and the debtor asks to reduce its amount on the basis of Article 333 of the Civil Code of the Russian Federation, the court considers the issue of proportionality of the penalty to the consequences of a violation of obligations based on the total amount of the fine and penalty fee .

81. If the failure to perform or improper performance of an obligation occurred through the fault of both parties, or the creditor deliberately or negligently contributed to an increase in the amount of the penalty or acted in bad faith, the amount of the debtor's liability may be reduced by the court on these grounds in accordance with the provisions of Article 404 of the Civil Code of the Russian Federation, which in the future will not excludes the application of Article 333 of the Civil Code of the Russian Federation.

Failure by the creditor to present a demand for the recovery of the principal debt for a long time after the due date for the performance of the obligation cannot in itself be regarded as contributing to an increase in the amount of the penalty.

Final provisions

82. The provisions of the Civil Code of the Russian Federation as amended by Federal Law No. 42-FZ of March 8, 2015 "On Amendments to Part One of the Civil Code of the Russian Federation" (hereinafter referred to as Law No. 42-FZ) apply to legal relations arising after the date of its entry into force. in force, unless otherwise provided by Article 2 of Law N 42-FZ. For legal relations that arose before the date of entry into force of Law N 42-FZ, the provisions of the Civil Code of the Russian Federation, as amended, apply to those rights and obligations that arise after the date of entry into force of Law N 42-FZ (June 1, 2015).

83. The provisions of the Civil Code of the Russian Federation as amended by Law No. 42-FZ, for example, Article 3171 of the Civil Code of the Russian Federation, do not apply to the rights and obligations arising from contracts concluded before the date of its entry into force (before June 1, 2015). When considering disputes arising from these contracts, one should be guided by the previous version of the Civil Code of the Russian Federation, taking into account the established practice of its application (clause 2 of article 4, paragraph two of clause 4 of article 421, clause 2 of article 422 of the Civil Code of the Russian Federation).

At the same time, when resolving the issue of accruing interest for non-fulfillment of a monetary obligation that arose on the basis of an agreement concluded before June 1, 2015, in relation to periods of delay that occurred from June 1, 2015, the amount of interest is determined in accordance with paragraph 1 of Article 395 of the Civil Code of the Russian Federation as amended by Law N 42-FZ.

84. In connection with the adoption of this resolution, to recognize as not subject to application:

paragraphs 2, 42, 50 - 52, paragraph two of paragraph 56 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 "On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation" ;

paragraphs 1 - 3, 5 - 11, paragraph six of paragraph 15, paragraphs 23 - 29 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 N 13/14 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's money";

paragraphs 1, 3 - 7, 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of December 22, 2011 N 81 "On some issues of application of Article 333 of the Civil Code of the Russian Federation";

Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of April 4, 2014 N 22 "On some issues of awarding money to a recoverer for non-execution of a judicial act."

Chairman of the Supreme Court of the Russian Federation

V. Lebedev

Secretary of the Plenum

Supreme Court judge Russian Federation

60. In case of non-fulfillment or improper fulfillment of an obligation, in particular in case of delay in fulfillment, the law or the contract may provide for the obligation of the debtor to pay the creditor a certain amount of money (forfeit), the amount of which can be set in a fixed amount - a fine or in the form of a periodically accrued payment - penalties (paragraph 1 of Article 330 of the Civil Code of the Russian Federation).

According to paragraph 1 of Article 394 of the Civil Code of the Russian Federation, if a penalty is established for non-fulfillment or improper fulfillment of an obligation, then losses are compensated in the part not covered by the penalty (set-off penalty). The law or the contract may provide for cases where it is allowed to recover only the penalty, but not damages (exclusive penalty), or when losses can be recovered in full in excess of the penalty (penalty), or when, at the option of the creditor, either a penalty or damages (alternative penalty).

If other property defined by generic characteristics is named as a penalty in the agreement of the parties, then, given that, by virtue of the provisions of Article 329 of the Civil Code of the Russian Federation, the list of methods for securing the fulfillment of obligations is not exhaustive, the rules of Articles 329 of the Civil Code of the Russian Federation are applied to such a method of securing obligations (paragraph 1 article 6 of the Civil Code of the Russian Federation).

61. If the amount of the penalty is established by law, then by virtue of paragraph 2 of Article 332 of the Civil Code of the Russian Federation, it cannot be reduced by agreement of the parties in advance, but can be increased if such an increase is not prohibited by law. For example, it is not allowed to increase the amount of penalties established by Part 14 of Article 155 of the Housing Code of the Russian Federation for late and / or incomplete payment by persons of payment for housing and utilities.

62. In case of violation of the main obligation, the obligation to pay a legal penalty may be terminated by the provision of compensation (the Civil Code of the Russian Federation), novation (the Civil Code of the Russian Federation) or forgiveness of the debt (the Civil Code of the Russian Federation) contained, among other things, in the amicable agreement.

64. The invalidity of the agreement from which the main obligation arose, as a general rule, entails the invalidity of agreements on measures of civil liability for violation of this obligation, including the penalty.

By agreement of the parties, a penalty may be provided in case of failure to fulfill the obligation to return property received under an invalid transaction. The invalidity or non-conclusion of the contract in connection with which an agreement on such a penalty was concluded, including when it is included in the contract in the form of a condition (clause), within the meaning of paragraph 3 of Article 329 of the Civil Code of the Russian Federation, does not in itself entail the invalidity or non-conclusion of the condition on the penalty .

At the same time, a separate agreement or a condition on a penalty included in the text of the contract in case of failure to fulfill the obligation to return property received under an invalid transaction may be declared invalid on an independent basis (Article 168 of the Civil Code of the Russian Federation). In this case, the specified agreement does not entail the consequences to which it was directed.

65. Within the meaning of Article 330 of the Civil Code of the Russian Federation, the plaintiff has the right to demand the award of a penalty until the day the obligation is actually fulfilled (in particular, the actual payment of funds to the creditor, the transfer of goods, the completion of work). A law or an agreement may establish a shorter period for calculating the penalty, or its amount may be limited (for example, clause 6 of Article 16.1 of the Federal Law of April 25, 2002 N 40-FZ "On Compulsory Insurance of Civil Liability of Vehicle Owners" (hereinafter - OSAGO law).

When awarding a forfeit, the court, at the request of the plaintiff, in the operative part of the decision indicates the amount of the forfeit calculated on the date of the decision and subject to collection, as well as the fact that such collection is made before the moment of actual fulfillment of the obligation.

The calculation of the amount of the penalty accrued after the decision is made is carried out in the process of execution of the judicial act by the bailiff, and in cases established by law, by other bodies, organizations, including treasury bodies, banks and other credit organizations, officials and citizens ( part 1 of article 7, paragraph 16 of part 1 of article 64 and part 2 of article 70 of the Law on Enforcement Proceedings). In case of ambiguity, the bailiff, other persons executing a judicial act have the right to apply to the court for an explanation of its execution, including on the question of exactly what amount is to be recovered from the debtor (CPC RF, APC RF).

In this case, the day of the actual performance of the violated obligation, in particular, the day of payment of the debt to the creditor, is included in the period for calculating the penalty.

66. As a general rule, if upon termination of the contract the main obligation is terminated, the penalty is charged until the termination of this obligation (paragraph 4 of Article 329 of the Civil Code of the Russian Federation). For example, the seller's refusal from the contract for the sale of a vehicle sold by installments terminates the buyer's obligation to pay for the goods and, accordingly, releases him from further charging a penalty for late payment for the goods (

According to paragraph 65 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 N 7 (as amended on February 7, 2017) “On the application by the courts of certain provisions of the Civil Code of the Russian Federation on liability for breach of obligations” within the meaning of Article 330 of the Civil Code of the Russian Federation, the plaintiff has the right to demand the award forfeit until the day of the actual performance of the obligation (in particular, the actual payment of funds to the creditor, the transfer of goods, the completion of work). When awarding a forfeit, the court, at the request of the plaintiff, in the operative part of the decision indicates the amount of the forfeit calculated on the date of the decision and subject to collection, as well as the fact that such collection is made before the moment of actual fulfillment of the obligation.

Collection of interest on the date of actual fulfillment of obligations

Meanwhile, the law does not provide for the possibility of filing a claim for the recovery of a penalty accrued on the date of execution of a court decision, that is, a penalty can be charged only for specific time periods. Thus, the court of first instance dismissed the claim for the recovery of a penalty for the period from 08/20/2015 to the date of execution of the court decision. The Board of Appeal agrees with the conclusions of the Court of First Instance, on the following grounds.

Paragraph 1 of clause 1 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation N 22 dated 04.04.2014 “On some issues of awarding money to a recoverer for non-execution of a judicial act” contains a statement that, within the meaning of Articles 330, 395, 809 of the Civil Code of the Russian Federation, the plaintiff has the right demand the award of a penalty or other interest on the day of the actual performance of the obligation.

And only in the Arbitration Court of the Moscow District did they decide to satisfy the plaintiff's claim and collect from the defendant a penalty for delay under the contract until the day the obligation to pay for the delivered goods was actually fulfilled. The court of cassation agreed with the plaintiff that the Decree of the Supreme Arbitration Court of the Russian Federation No. 22 (clause 1) provides for the possibility for the plaintiffs to charge a penalty or other interest on the day of the actual fulfillment of the obligation to pay for the goods. Moreover, such a right of the plaintiff is not made dependent on the execution of a judicial act by the debtor.

For certain reasons, the joint-stock company has not yet presented a writ of execution for execution, that is, it is still difficult to say how such a decision will be executed by the debtor's bank or the bailiff service.

Recovery of a penalty after a court decision

In addition, the court in any case collects a penalty only on the day the court decision is made. That is, for the period from the date of the court decision to the day of the actual fulfillment of the obligation to pay for the goods, one has to go to court again and recover the penalty for this period, that is, again, incur time and financial costs. In the second option, the organization has to apply to the court with a statement of claim for the recovery of penalties after the debtor has repaid the debt.
In this case, the Creditor receives penalties with an even greater delay and also bears the financial and time costs associated with the new claim proceedings. It seemed that the problem was intended to be eliminated by the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 4, 2014 No. 22 “On some issues of awarding money to a recoverer for non-execution of a judicial act.”

We recover the penalty on the day the obligation is fulfilled

The Civil Code of the Russian Federation states that interest is payable for the entire period of use of other people's funds until the day the funds are actually paid to the creditor.

• Similarly, in relation to interest on the use of a loan, paragraph 2 of Article 809 of the Civil Code of the Russian Federation states that interest is paid monthly until the day the loan amount is repaid.

• Clause 2 of the Decree of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 13/14 dated 08.10.1998 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's money" also provides for the calculation of interest specified in Art.

On the recovery of a penalty after a court decision

Federal Law No. 40-FZ of April 25, 2002 “On Compulsory Insurance of Civil Liability of Vehicle Owners” (hereinafter referred to as the OSAGO Law). subject to collection, as well as the fact that such collection is made before the moment of actual fulfillment of the obligation. including treasury bodies, banks and other credit organizations, officials and citizens (part 1 of article 7, article 8, paragraph 16 of part 1 of article 64 and part 2 of article 70 of the Law on Enforcement Proceedings).

Collection of interest and penalties until the day the debt is actually paid

Decree of the Plenums of the Supreme Court of the Russian Federation N 6 and the Supreme Arbitration Court of the Russian Federation of 07/01/1996 N 8 "On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation" in paragraph 50 considers the interest for the use of other people's funds established by Article 395 of the Civil Code of the Russian Federation, on a par with damages and penalties, and not as a variation of any of these liability measures. Articles 330 and 332 of the Civil Code of the Russian Federation do not contain a similar provision on the collection of a penalty for the future. Under certain conditions, even under a terminated contract, a penalty, by virtue of paragraph 3 of Article 425 of the Civil Code of the Russian Federation, is also subject to accrual until the parties complete their obligations.

Attention

Paragraph 75 of the Decree establishes that when assessing the proportionality of the penalty to the consequences of the breach of obligation, it must be taken into account that no one has the right to benefit from their illegal behavior, and also that the misuse of other people's money should not be more beneficial for the debtor than the conditions for fair use ( paragraphs 3, 4 of Article 1 of the Civil Code of the Russian Federation). Evidence of the reasonableness of the amount of the penalty can serve, in particular, data on the average fee for short-term loans for working capital, issued by credit institutions to persons engaged in entrepreneurial activities, or fees for short-term loans issued to individuals, at the location of the creditor during the period of breach of obligation . In addition, the plaintiff is liable in accordance with Art.

According to paragraph 2 of the aforementioned Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of December 22, 2011 N 81, no one has the right to benefit from their illegal behavior. Resolution of the Ninth Arbitration Court of Appeal dated November 9, 2015 N 09AP-43993 / 2015-GK, 09AP-44876 / 2015-GK in case N A40-74197 / 15 Indeed, as the plaintiff correctly points out in the appeal, paragraph 1 of the Resolution of the Plenum of the Supreme Arbitration of the Court of the Russian Federation of 04.04.2012 N 22 was not recognized as not applicable in the Resolution of the Plenum of the Supreme Court of the Russian Federation of 06.23.2015

N 25, in connection with which the conclusion of the court of first instance on the impossibility of charging a penalty on the day of actual payment of the debt is incorrect.

Recovery of interest on the day of execution of the court decision after the recovery of the penalty

A year ago, I collected a penalty from the developer for violating the deadline for transferring the apartment. The apartment has not yet been handed over to me. I recently filed a new forfeit claim for 9 months of this year. The judge terminated the proceedings on this claim due to the inadmissibility of going to court in a dispute between the same parties, on the same subject and on the same grounds.

In the new suit, I demanded a penalty for the next period, and not for the same one. Is the court correct? In accordance with paragraph 2 of Art. 6 of the Federal Law of December 30, 2004 N 214-FZ "On participation in shared construction ..." the penalty (penalty) is determined as a share of the refinancing rate of the Central Bank of the Russian Federation from the contract price for each day of delay. Accordingly, the penalty should be charged until the day of the actual fulfillment of the obligation to transfer the object.

Thus, to receive a penalty on the day of the actual fulfillment of the obligations of the developer is the legal right of the shareholder.

Today, more and more controversial issues arise about the collection of interest on the date of actual fulfillment of obligations. The procedure for drawing up a claim always involves the calculation of a penalty or interest for the use of other people's money on the date of the direct filing of a claim with a judicial authority.

After that, in the course of litigation, there is usually a clarification (sometimes an increase) of specific claims. Also, the penalty or interest is often recalculated by an indicative number when a court decision is made.

For this reason, asking the court in the statement of claim for the appointment of a penalty or other interest on the date of the actual performance of the obligation is the most appropriate solution.

Related materials

In Article 395 of the Civil Code of the Russian Federation, interest for the use of other people's money is subject to collection, accrued on the entire amount recovered (it also implies the principal debt, the amount of the penalty and the incurred legal expenses) at a certain refinancing rate of the Central Bank from the date of its entry into force until the day of the start of its actual execution.

The conclusions of the courts of the first order on the collection of interest in accordance with Article 395 of the Civil Code of the Russian Federation are contradictory. The majority of courts are guided only by internal conviction and quite rarely follow the requirements set out in the claim.

Although, due to the similarity of situations, judicial practice on such issues should be uniform, that is, interest should be charged not on the date of the issuance of the judicial act, but on the date of the actual execution of the decision of the court. Such court decisions would be the only correct ones, since they would help prevent re-applying to the court to recalculate interest, as well as to re-obtain a writ of execution and present it for execution, and so many times, until the actual execution of the original decision of the court.

However, on the territory of the Kamchatka Territory, a review of judicial practice over the past year indicates that in this region there is a generally positive judicial practice in the category of civil cases described above. This has a positive effect on the activities of FGKU "Rosvoenipoteka", helping to reduce the cost of the institution and contributing to significant time savings.

From the above picture, we can conclude that when initiating this category of civil cases in court, one should firmly defend one’s demands and beliefs, and reasonably prove the expediency of collecting interest precisely on the date of the actual execution of the court.

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