of July 19, 2002 No. P-145/2002
About legal regulation of the conclusion by physical persons of loan agreements in foreign currency
Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. A., vice-chairman Maryskin A. V., Vorobey G. A. judges., Kenik K. I., Sarkisova E. A., Tikovenko A. G., Filipchik R. I., G.B. Cone, Shuklina V. Z. considered based on Article 40, parts one of article 116 of the Constitution of the Republic of Belarus, article 18 of the Law of the Republic of Belarus "About the status of the deputy of the House of Representatives, the member of council of the Republic of National assembly of the Republic of Belarus" addresses of citizens and the address of the deputy of the House of Representatives of National assembly of the Republic of Belarus Novosyad V. V. concerning legitimacy of collection by courts in the income of the state of foreign currency as subject of the loan agreements signed by citizens among themselves.
According to Item 3 of Article 760 of the Civil code the foreign currency can be the subject of the agreement of loan in the territory of the Republic of Belarus with observance of rules of Articles 141, 142 and 298 these Codes.
Article 141 of the Civil code provides that legal means of payment in the territory of the Republic of Belarus is the Belarusian ruble. Cases, procedure and conditions of use of foreign currency in the territory of the Republic of Belarus are determined by the legislation.
According to Article 298 of the Civil code monetary commitments shall be expressed in Belarusian rubles. It can be provided in monetary commitment that it is subject to payment in Belarusian rubles in the amount equivalent to certain amount in foreign currency or in conventional monetary units. In this case the amount which is subject to payment in rubles is determined by the official rate of the corresponding currency or conventional monetary units on the maturity day if other rate or other date of its determination are not established by the legislation or the agreement of the parties. Use of foreign currency when implementing calculations in the territory of the Republic of Belarus for obligations is allowed in cases, procedure and on the conditions determined by the legislation of the Republic of Belarus. Similar approach is provided also in article 11 of the Bank code of the Republic of Belarus.
The constitutional court notes that Civil and Bank codes provide possibility of use in the territory of the Republic of Belarus of foreign currency in allowing procedure - in cases, procedure and on conditions, directly stipulated by the legislation.
Legal regulation of use by citizens of foreign currency in the territory of the Republic of Belarus is performed as legal acts (for example, the Decree of the President of the Republic of Belarus of April 20, 1998 No. 4 "About guarantees of safety of means of the physical persons in foreign currency which are on accounts and in deposits in banks of the Republic of Belarus", the Resolution of the Supreme Council of the Republic of Belarus of March 20, 1992. "About temporary procedure for currency control and carrying out currency transactions in the territory of the Republic of Belarus"), and regulatory legal acts of National Bank of the Republic of Belarus.
By the presidential decree of the Republic of Belarus of February 23, 2000 No. 87 "About enhancement of system of currency control and currency exchange control in the Republic of Belarus" to National Bank is granted the right to determine the sphere and procedure for the address in the Republic of Belarus of foreign currency and payment documents in foreign currency, including rules of carrying out by residents and nonresidents of transactions with foreign currency, payment documents in foreign currency (subitem 2.2. 1) to establish rules of issue of special permissions (licenses) for implementation of currency transactions and to issue such permissions (licenses) (subitem 2.2. 2).
The regulations on procedure for carrying out currency transactions in the territory of the Republic of Belarus approved by Board of National Bank of the Republic of Belarus on June 25, 1996 provide that grazhdanerezidenta (the physical persons having the permanent residence in the territory of the Republic of Belarus, including temporarily being outside the Republic of Belarus) and nonresidents (the physical persons having the permanent residence outside the Republic of Belarus, including temporarily being in the Republic of Belarus) can have in property the currency values imported, translated or sent to the Republic of Belarus from abroad, received or acquired in the territory of the Republic of Belarus according to the current legislation to store them on accounts or in deposits in authorized banks and to use on the purposes which are not prohibited by the legislation of the Republic of Belarus (subitem 9. 1). At the same time provision by resident citizens of foreign currency loans is forbidden to legal entities - residents (subitem 9. 11).
Thus, according to the legislation confiscation is applied not for any violation of procedure for carrying out currency transactions, and for making of such transaction without license.
Making by citizens of currency transactions without the corresponding permission (license) attracts also application by courts based on Article 170 of the Civil code of such measure as collection of everything received by the parties according to the transaction in the income of the Republic of Belarus. At the same time according to Item 2 of Article 167 of the Civil code of the requirement about factual determination of negligibility of the transaction and on application of effects of its invalidity can be shown by any interested person. The court has the right to apply such effects on own initiative. Because the insignificant transaction is invalid owing to specifying on it the law, court, according to the Constitutional Court having the right to apply the effects of such transaction provided by the law as in case of presentation by the interested person of the requirement about factual determination of its negligibility, and in case of establishment of the bases of negligibility by consideration of other requirement. Such right of court follows also from Article 273 of the Code of civil procedure.
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