On January 21, 2004 No. 1
About some questions of application of regulations of the Civil code of the Republic of Belarus of responsibility for use of others money
For the purpose of ensuring the correct and uniform application by economic courts of regulations of the Civil code of the Republic of Belarus about responsibility for use of others money, and also in connection with the questions Plenum of Supreme Economic Court of the Republic of Belarus which arose in court practice, being guided by articles 14-16 of the Law of the Republic of Belarus of December 9, 1998 "About economic courts in the Republic of Belarus" (Vedamastsi Natsyyanalnaga to descent of Respubliki Belarus, 1999, No. 2, the Art. 32),
1. Explain to economic courts of the Republic of Belarus (further economic court) that Article 366 of the Civil code of the Republic of Belarus (further - group of companies) establishes independent responsibility for non-execution of monetary commitment irrespective of the bases of its origin (Article 7 of group of companies) in payment type of percent on the amount of these means.
Item 1 of Article 366 of group of companies provides effects of non-execution or delay of execution of monetary commitment owing to which the obligation is assigned to the debtor to pay percent. Provisions of this Article are not applied to the relations of the parties if they are not connected with use of money as principal payment, repayment of money debt. In particular, the exchange assuming counter transfer of equivalent goods monetary commitment is not. In case according to the agreement of exchange the exchanged goods are recognized unequal, the party obliged to transfer goods which price of the low price of the goods provided in exchange shall pay difference in the prices (Item 2 of Article 539 of group of companies). The difference in the price is considered monetary commitment.
Monetary commitment is any obligation on payment (to return, issue, etc.) sum of money (amounts).
2. The size of interest for using others money is determined by discount rate of National Bank of the Republic of Belarus on the date of execution of monetary commitment or its corresponding part, except for debt collections judicially when the economic court meets the requirement of the creditor proceeding from discount rate of National Bank on the date of decision (Item 1 of Article 366 of group of companies). These rules are applied if other size of percent is not established by the legislation or the agreement.
At the same time if in connection with increase in the size of discount rate of National Bank during consideration of the case in economic court claims are satisfied by economic court in the bigger amount, than original price of the claim, then the state fee in the amount of, conforming to the met requirements at the same time is subject to dovzyskaniye from party at fault in the budget and if the size of discount rate is reduced for the same time and the claim the claim price, the paid state fee according to Item 6 of article 8 of the Law of the Republic of Belarus of January 10, 1992 "About the state fee" is satisfied in the smaller amount, than (Vyarkho¸naga Savet's Vedamastsi of Respubliki Belarus, 1992, No. 6, Art. 100; The National register of legal acts of the Republic of Belarus, 2004, No. 189, 2/1087) is subject to partial return from the republican budget.
In cases when the monetary commitment is fulfilled by the debtor fully or partially with delay, the economic court in case of collection of percent during delay applies the size of discount rate of National Bank operating on the date of the actual complete or partial execution of monetary commitment if other size of percent is not established by the legislation or the agreement.
At the same time economic courts should mean that percent are estimated on partially extinguished amount of debt at the discount rate operating at the time of partial debt repayment or at the time of collection of remaining balance of debt judicially depending on the number of days of delay of the amount of debt which is partially extinguished or partially collected by economic court.
3. Draw the attention of economic courts that if by consideration of the requirement about collection of interest for using others money it is determined that the principal debt is not paid off by the defendant and the requirement about collection of the amount of principal debt by the claimant is not declared, then collection of percent on this amount of debt cannot be satisfied.
4. When calculating the amount of subjects to interest payment at discount rate of National Bank the exact number of days in year is accepted (365 or 366) if the agreement of the parties does not provide that when charging percent the number of days in year is accepted conditional (360).
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