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

of December 6, 2013 No. 88

About charge and interest payment according to requirements of creditors in case of bankruptcy

Due to the questions arising in court practice connected with charge and interest payment according to requirements of creditors in case of bankruptcy, the Plenum of the Supreme Arbitration Court of the Russian Federation, being guided by article 13 of the Federal constitutional Law of 28.04.1995 No. 1-FKZ "About Arbitration Courts in the Russian Federation", decides to make to Arbitration Courts the following explanations.

1. Proceeding from Item 1 of Article 4 and Item 1 of article 5 of the Federal Law of 26.10.2002 No. 127-FZ "About insolvency (bankruptcy)" (further - the Bankrupcy law, the Law) if the main requirement of the creditor to the debtor arose before initiation of proceedings about bankruptcy, then and all related additional requirements have the same legal regime in case of bankruptcy, that is they are not current and are subject to inclusion in the register of requirements of creditors.

For the specified purposes the main requirements are understood as requirements about return of loan amount (Article 810 of the Civil code of the Russian Federation; further - the Civil Code of the Russian Federation), about payment of the price of goods, work or services (articles 485 and 709 Civil Codes of the Russian Federation), tax amounts or collection, etc.

Requirements about interest payment of loan amount (article 809 Civil Code of the Russian Federation) or for unauthorized use by others money (article 395 Civil Code of the Russian Federation), penalties in the form of penalty fee (article 330 Civil Code of the Russian Federation), penalty fee for delay of the tax discharge or collection (article 75 of the Tax Code of the Russian Federation), etc. (further - percent) and about payment of penalty in the form of penalty belong to the mentioned additional requirements, in particular.

2. If the court resolution confirming requirements of the creditor who filed petition for recognition of the debtor by the bankrupt (applicant) collects percent on date of the actual execution of the court ruling, then based on paragraph one of Item 1 of Article 4 of the Bankrupcy law the register of requirements of creditors by results of check of justification of this statement joins the amount of these percent calculated for date of giving in court of the statement for recognition of the debtor by the bankrupt as in that case all this amount is confirmed with court resolution.

For the purposes of application of paragraph one of Item 1 of Article 4 of the Bankrupcy law date of filing of application is understood as date of its receipt in court, but not date of removal by court of determination about its acceptance.

If the court resolution collects percent as of certain date in the specific amount, then the register of requirements of creditors joins only this amount of percent collected by court, and percent from the mentioned date before date of filing of application about recognition of the debtor by the bankrupt as they are not confirmed with court resolution, cannot be included in the register at stage of check of justification of this statement.

Taking into account requirements of Items 1 and 2 of Article 3 and Item 2 of Article 4 of the Bankrupcy law in case of determination of the general size of requirements of the applicant for the purposes of Item 2 of article 33 of the Law all sum of percent calculated for the specified rules is considered; the three-months delay not according to the main requirement, and on percent is not required.

Percent on demand on which the statement for recognition of the debtor by the bankrupt was based from date for which they were established in case of observation introduction, before Date of Introduction of observation can be shown by the applicant in the case of bankruptcy in general procedure by rules of articles 71 or 100 of the Law.

3. As the Bankrupcy law allows to impose requirements which completion date on their conditions did not come in case of bankruptcy (Item 3 of Article 63 and paragraph two of Item 1 of Article 126), in case of determination of the size of such requirement for the purposes of inclusion it in the register of requirements of creditors it is necessary to consider the following.

If on the amount of the main requirement before the term of its execution percent are not charged under the terms of the obligation, then the size of such requirement decreases by the amount of the percent estimated from Date of Introduction of observation before date of approach of agreed time frame of obligation fulfillment proceeding from discount rate of bank interest on Date of Introduction of observation.

Besides, if it is proved that the size of the main requirement was determined by obligation parties actually taking into account interest for using the credit taking place (including commercial credit), in particular by increase in the regular price of similar goods or increase in the amount of the bill of exchange in comparison with the credit issued by way of its acquisition, then the court has the right to reduce the requirement size proceeding from the average size of rate 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 at the time of observation introduction. Such reduction can be made by court and if for the sake of appearances in case of simultaneous actual inclusion of percent on the credit in the size of the main requirement of the obligation party also established the symbolical percent by the size charged before completion date of the obligation.

In case of inclusion in the register of requirements of creditors of requirements for the credit agreement under the terms of which the credit returns the borrower by monthly payment during the certain period of the fixed sum of money as a part of which first of all percent for all term of use of the credit (annuity procedure for repayment of the loan) specified in the agreement are considered if at the same time observation was entered before the expiration of repayment of the loan, the size of outstanding principal debt is recalculated proceeding from the size of the percent calculated on Date of Introduction of observation.

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