of September 13, 2011 No. 146
The presidium of the Supreme Arbitration Court of the Russian Federation considered the Overview of court practice on some questions connected using to banks of the administrative responsibility for violation of the law about consumer protection in case of the conclusion of credit agreements and according to article 16 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" informs Arbitration Courts on the developed recommendations.
Appendix: the overview on 32 l.
Chairman of the Supreme Arbitration Court of the Russian Federation
A. A. Ivanov
1. Inclusion in the credit agreement of condition that in case of violation of obligations on return of the next part of the credit the bank has the right to demand early return of the issued credit does not contradict part 4 of article 29 of the Federal law "About Banks and Banking Activity".
The bank appealed to Arbitration Court (further - court) with the application for cancellation of the resolution of body for supervision in the sphere of consumer protection (further - body of Rospotrebnadzor) about involvement of bank to the administrative responsibility provided by part 2 of article 14.8 of the Russian Federation Code of Administrative Offences (further the Code of the Russian Federation on Administrative Offences), for inclusion in the agreement of the condition violating the rights of consumers established by the law.
The Trial Court determined that the bank was brought to the administrative responsibility for inclusion in the credit agreements signed with citizens of condition about the right of bank to demand early obligation fulfillment on repayment of the loan if the borrower will allow delay on return of the next part of the credit and interest payment for use of the credit.
The court met the declared requirement, having specified that this right of bank is provided by provisions of Article 811 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation, the Code) therefore inclusion in the agreement of the called condition does not contradict the law and cannot violate the rights of consumers.
The Appeal Court cancelled resolution of the Trial Court, refused allowance of the application of bank, believing that article 29 of the Federal Law of 02.12.1990 No. 395-1 "About banks and banking activity" (further - the Law on banks) establishes special requirements to content of conditions of the credit agreements signed by credit institutions with citizens. In particular, according to part 4 of the called Article according to the credit agreement signed with the borrower citizen, the credit institution cannot reduce effective period of this agreement unilaterally. According to Appeal Court, the disputable condition of the credit agreement gives to bank opportunity to impose requirement about repayment of the loan not in time, established by the agreement, and before this term that is not allowed by provisions of the specified article of the Law on banks.
The court of cassation instance cancelled the court order of appellate instance and upheld resolution of the Trial Court, having referred at the same time to the following.
Owing to article 9 of the Federal Law of 26.01.1996 No. 15-FZ "About enforcement of part two of the Civil code of the Russian Federation" in cases when one of the parties in the obligation is the citizen who is using, acquiring, ordering or having intention to acquire or order goods (works, services) for personal domestic needs, such citizen has rights of the Party in the obligation according to the Civil Code of the Russian Federation, and also the rights granted to the consumer by the Law of the Russian Federation of 07.02.1992 No. 2300-1 "About consumer protection" (further - the Marine life protection act of the rights of consumers) and other legal acts published according to it. The right of bank to require early return of credit amount in case of violation of term of return of the next part of the credit is provided by provisions of article 811 Civil Code of the Russian Federation therefore inclusion in the credit agreement of this condition does not contradict the law and cannot violate the rights of consumers.
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