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

of March 14, 2014 No. 17

About the single questions connected with the agreement of redemption leasing

Due to the questions arising in court practice and for the purpose of ensuring uniformity in the dispute resolution, connected using the legislation on finance lease (leasing), the Plenum of the Supreme Arbitration Court of the Russian Federation based on article 13 of the Federal constitutional Law of 28.04.1995 No. 1-FKZ "About Arbitration Courts in the Russian Federation" decides to give to Arbitration Courts (further - courts) the following explanations:

1. In this resolution the agreement of redemption leasing is understood as the agreement of leasing which according to article 19 of the Federal Law of 29.10.1998 No. 164-FZ "About finance lease (leasing)" (further - the Law on leasing) contains condition about transition of the property right regarding leasing to the leasing recipient in case of introduction of all leasing payments by it, including buyback price if its payment is provided by the agreement.

At the same time the legal line items containing in this resolution are subject to application also to agreements of leasing which contain condition about the right of the leasing recipient to redeem upon termination of effective period of such agreement leasing subject of the price, so smaller, than its market value at the time of the redemption that it is symbolical.

2. Courts need to consider that by the general rule in the agreement of redemption leasing valuable interest of the lessor consists in placement and the subsequent return with profit of money, and valuable interest of the leasing recipient - in acquisition of subject of leasing in property at the expense of the means provided by the lessor and with its assistance. Acquisition by the lessor of the property right regarding leasing serves for it as providing obligations of the leasing recipient on payment of the payments established by the agreement, and also guarantee of the return enclosed.

In sense of Article 329 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation) the mentioned providing stops in case of introduction by the leasing recipient of all contractual payments, including in cases when the lessor is in process of bankruptcy or it evades from execution of the transfer act, the purchase and sale agreement and other documents.

3. In case of the dispute resolution, arising between agreement parties of redemption leasing, about property termination effects of this agreement courts should proceed from the following.

3.1. Agreement cancelation of redemption leasing, including because of the delay of payment of leasing payments allowed by the leasing recipient, shall not involve receipt of such benefits by the lessor which would put it in the best property status, than in what it would be in case of accomplishment by the leasing recipient of the agreement subject to its terms and conditions (Items 3 and 4 of article 1 Civil Code of the Russian Federation).

At the same time agreement cancelation of redemption leasing because of the delay allowed by the leasing recipient in payment shall not lead to release of the leasing recipient from obligation on return of the financing received from the lessor, introduction of payment for financing and compensations of the losses (article 15 Civil Code of the Russian Federation) caused to the lessor, and also other provided by the law or the agreement of sanctions.

With respect thereto agreement cancelation of redemption leasing generates need to correlate the mutual provisions of agreement parties made until its termination (balance of counter obligations) and to determine the completing obligation of one party concerning another according to the following rules.

3.2. If the payments received by the lessor from the leasing recipient (except for advance) in total with the cost of the subject of leasing returned to him there is less amount of the financing provided to the leasing recipient proved by the lessor, payment for the called financing in time before the actual return of this financing, and also the losses of the lessor and other sanctions established by the law or the agreement, the lessor has the right to collect the corresponding difference from the leasing recipient.

3.3. If the payments made by the leasing recipient to the lessor (except for advance) in total with the cost of the returned subject of leasing exceed the amount of the financing provided to the leasing recipient proved by the lessor, payments for the called financing in time before the actual return of this financing, and also losses and other sanctions provided by the law or the agreement, the leasing recipient has the right to collect the corresponding difference from the lessor.

3.4. The amount of the financing provided by the lessor to the leasing recipient is determined as purchase price of subject of leasing (less advance payment of the leasing recipient) in total with expenses by its delivery, repair, transfer to the leasing recipient, etc.

3.5. The payment for the financing provided to the leasing recipient is determined as a percentage annual on the amount of financing. If the corresponding interest rate is not provided by the agreement of leasing, it is established by court in the settlement way on the basis of difference between the amount of all payments under the agreement of leasing (except for advance) and the amount of financing, and also term of the agreement <1>.

--------------------------------

<1> The payment for financing (as a percentage annual) is determined by the following formula:

Формула №1 к ПП ВАС от 14.03.2014 г. №17

where

PF

- payment for financing (as a percentage annual),

 П

 - the general amount of payments under the agreement of leasing,

And

 - advance amount under the agreement of leasing,

Ф

 - amount of financing,

Формула №2 к ПП ВАС от 14.03.2014 г. №17

- the term of the agreement of leasing in days.

3.6. Losses of the lessor are determined by the general rules provided by the civil legislation.

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