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INFORMATION LETTER OF THE SUPREME ECONOMIC COURT OF UKRAINE

of July 17, 2012 No. 01-06/928/2012

Economic courts of Ukraine

About practice of application by the Supreme Economic Court of Ukraine in hearing of cases of separate regulations of the substantive right

(as amended on 20-07-2012)

For the purpose of ensuring the correct and identical court practice we consider necessary to draw the attention of economic courts to practice of application by court of cassation instance in hearing of cases of separate regulations of the Civil code of Ukraine (further - the Civil Code of Ukraine, the Economic code of Ukraine (further - HK of Ukraine) and other acts of the legislation which contain regulations of the substantive right, namely:

1) parts one of Article 692 of Civil Code of Ukraine concerning determination of term of accomplishment by the debtor of monetary commitment which arose based on the agreement of purchase sale (in the ratio to happiness of the second Article 530 of Civil Code of Ukraine).

According to part one of Article 692 of Civil Code of Ukraine the buyer shall pay to the seller total price of the transferred goods. Payment payment by installments can be provided by the agreement of purchase sale.

Therefore, if another is not established by the agreement signed by the parties or the act of the civil legislation, the current of term of accomplishment of monetary commitment which arose based on the agreement of purchase sale begins with the moment of acceptance of goods or adoption of tovarorasporyaditelny documents on it, and the provision of part two of article 530 of the called Code in which there is a speech about the term (period) of accomplishment by the debtor of obligations which are not established or determined by the moment of submission of demand, is not applied to the corresponding legal relationship (see the resolution of the Supreme Economic Court of Ukraine of 28.02.2012 No. 50028/481-2011).

At the same time signing by the buyer of the goods issue slip which is source accounting document in understanding of the Law of Ukraine "About financial accounting and the financial reporting in Ukraine" and which meets the requirements, in particular, of article 9 of the called Law and Regulations on documentary ensuring records in financial accounting and fixes the fact of implementation of economic activity and establishment of contractual relations, is the basis of emergence of obligation concerning implementation of calculations for the received goods. The term of accomplishment of the corresponding monetary commitment is determined by the rules established by part one of Article 692 of Civil Code of Ukraine (see the resolution of the Supreme Economic Court of Ukraine of 21.04.2011 No. 9/252-10);

2) parts two of Article 625 of Civil Code of Ukraine in hearing of cases on the disputes connected with determination of amount of debt taking into account the inflation index.

According to part two of Article 625 of the Civil code of Ukraine the debtor who delayed accomplishment of monetary commitment upon the demand of the creditor shall pay amount of debt taking into account the established inflation index for all the time of delay.

Amount of debt taking into account the inflation index shall be calculated, proceeding from the inflation index for every month (year) of delay irrespective of whether there was during some period inflation index less unit (that is not inflation, but deflation) [see the resolution of the Supreme Economic Court of Ukraine of 05.04.2011 No. 23/466 and the letter of the Supreme Court of Ukraine "Recommendations concerning procedure for application of the inflation indexes by consideration of legal cases" of 03.04.1997 No. 62-97r took place].

In case of application of the inflation index it must be kept in mind that the index is calculated not for each date of month, and on average for month and it is performed by multiplication of outstanding amount at the time of its origin on the cumulative inflation index for the period of payment delay. At the same time the amount of debt which is paid from 1 to 15 day of the corresponding month is indexed taking into account this month and if amount of debt is paid from 16 to 31 days of month, calculation begins from next month. Similarly, if debt repayment is performed from 1 to 15 day of the corresponding month, inflation losses are calculated without taking into account this month and if from 16 to 31 days of month, then inflation losses are calculated taking into account this month (see the resolution of the Supreme Economic Court of Ukraine of 01.02.2012 No. 52/30).

Owing to instructions of Article 625 of Civil Code of Ukraine the debtor who delayed accomplishment of monetary commitment upon the demand of the creditor shall pay amount of debt taking into account the established inflation index for all the time of delay, and also three annual interest rates from the overdue amount if other size of percent is not established by the agreement or the law.

The right of the creditor provided by the law to require debt repayment taking into account the inflation index and annual interest rates is methods of protection of its property right and interest which essence consists in compensation of material losses of the creditor from depreciation of money as a result of inflationary tendencies and receipt of compensation (payment) from the debtor for use of the money withheld by it ought to payment to the creditor.

The obligation stops the accomplishment which is carried out properly Article 599 of Civil Code of Ukraine. At the same time the current legislation does not connect the termination of monetary commitment with availability of the judgment on debt collection taking into account the established inflation index and three annual interest rates from the overdue amount or opening of enforcement proceeding on forced accomplishment of such decision (see resolutions of the Supreme Court of Ukraine of 04.07.2011 No. 13/210/10 and of 12.09.2011 No. 6/433-42/183 and the resolution of the Supreme Economic Court of Ukraine of 16.03.2011 No. 11/109);

3) to article 202 HK of Ukraine and Article 599 of Civil Code of Ukraine concerning responsibility of the debtor for violation of terms of calculations in case of availability of the judgment on debt collection or opening of enforcement proceeding.

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