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RESOLUTION OF THE PLENUM OF THE SUPREME ARBIRTAZHNY COURT OF THE RUSSIAN FEDERATION

of December 22, 2011 No. 81

About some questions of application of Article 333 of the Civil code of the Russian Federation

(as amended on 24-03-2016)

Due to the questions arising in court practice connected using provisions of Article 333 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation, the Code), the Plenum of the Supreme Arbitration Court of the Russian Federation, being guided by article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation", decides to make to Arbitration Courts the following explanations.

1.   No. 7 is not applied according to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 24.03.2016.

2. By consideration of question of need of decrease in penalty according to the statement of defense based on article 333 Civil Code of the Russian Federation courts should recognize that non-execution or improper execution by the debtor of monetary commitment allows it to use others money illegally. As nobody has the right to take benefits from the illegal behavior, conditions of such use cannot be more profitable to the debtor, than conditions of use of the money received by participants of turnover legally (for example, according to credit agreements).

Resolving question of proportionality of penalty to effects of violation of monetary commitment and for this purpose determining the size sufficient for compensation of losses of the creditor, courts can proceed from the double discount rate (rates) of the Bank of Russia existing during such violation. At the same time for reasons for other size of the penalty proportional to effects of violation of the obligation, each of the parties has the right to produce the evidence that the average amount of payment on the short-term loans on replenishment of current assets issued by credit institutions to subjects of business activity in the location of the debtor during violation of the obligation above or below the double discount rate of the Bank of Russia existing during the same period. Decrease by court in penalty is lower than the size determined thus it is allowed in exceptional cases, at the same time the awarded sum of money cannot be less than that which would be added on amount of debt proceeding from single discount rate of the Bank of Russia.

Decrease in penalty below single discount rate of the Bank of Russia based on the corresponding statement of defense is allowed only in extraordinary cases when losses of the creditor are compensated because the amount of payment for use of money provided by obligation conditions (loan, the credit, commercial credit) considerably exceeds the percent which are usually levied in similar circumstances.

3.   No. 7 is not applied according to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 24.03.2016.

4.   No. 7 is not applied according to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 24.03.2016.

5.   No. 7 is not applied according to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 24.03.2016.

6.   No. 7 is not applied according to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 24.03.2016.

7.   No. 7 is not applied according to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 24.03.2016.

8. Courts should consider that provisions of article 333 Civil Code of the Russian Federation taking into account the explanations containing in this resolution are applied to stipulated in Item 2 articles 381 of the Code to measures of responsibility for non-execution of the agreement provided with deposit (Item 1 of article 6 Civil Code of the Russian Federation). So, in case of collection of double sum of earnest money from the party responsible for non-execution of the agreement, court has the right to reduce according to the statement of defense the size of half of the specified amount according to provisions of article 333 Civil Code of the Russian Federation.

The party, responsible for non-execution of the agreement, which gave the earnest having also the right to put question of application to sum of earnest money, remained with other party, provisions of article 333 of the Code, including by presentation of the independent requirement about return which is excessively paid (article 1102 Civil Code of the Russian Federation).

9. Considering questions of distribution between the parties of expenses on payment of the state fee in cases of reduction of the size subject to penalty, Arbitration Courts need to consider that according to the subitem 2 of Item 1 of article 333.22 of the Tax Code of the Russian Federation the price of the claim joins the penalty amounts specified in the action for declaration (penalties, penalty fee) and percent.

If the claimant reduced the size of the requirement about penalty, excessively paid state fee returns to the claimant body of the Federal Treasury as paid in the amount of bigger, than it is provided by the law (the subitem 3 of Item 1 of article 333.22 of the Tax Code of the Russian Federation).

If the size of the declared penalty is reduced by Arbitration Court by rules of article 333 Civil Code of the Russian Federation based on the statement of defense, the claimant's expenses on the state fee do not return to parts of the reduced amount from the budget and are subject to compensation by the defendant proceeding from the amount of penalty which would be subject to collection without its decrease.

In cases when the claimant is exempted from payment of the state fee, the corresponding amount of the state fee is collected from the defendant in proportion to the size of the penalty lowered by court (part 3 Articles of 110 AIC of the Russian Federation).

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