Calculation of illegal use of other people's funds. Interest for using other people's funds

The article will help you calculate the delay, determine the percentage for the use of strangers in cash according to .

The seller (contractor) is interested in the buyer (customer) fulfilling his monetary obligation in a timely manner. In the event of a delay in payment, the seller (buyer) will be interested not only in paying the counterparty for his debt, but also in collecting sanctions from him for late payment.

The seller (contractor), in the event of a delay in payment by the buyer (customer), may apply the following measures to the violator:

• charge interest for non-performance monetary obligation(p. 1);
• collect a penalty for the delay in the fulfillment of a monetary obligation (clause 1);
• recover losses due to late payment (clause 1);
• to foreclose on the goods transferred to the buyer and unpaid (clause 1, clause 5);
• demand the return of the transferred goods (clause 2).

General Provisions the procedure for the application and the amount of these sanctions are contained in the Civil Code of the Russian Federation. At the same time, some of these provisions of the law allow concretize in the treaty itself... In the event of a delay in payment, the seller (contractor) will be interested in collecting from the counterparty the largest possible amount of sanctions for the delay in payment for the goods (work). In this case, the seller (contractor) can establish in the contract a specific type of sanctions from those provided for in the law, the collection of which is most in line with his interests.

Consequently, when agreeing on the text of the contract, the task of the seller (contractor) will be to prescribe in the contract the most favorable conditions for the seller (contractor) on the collection of sanctions for late payment.

So, one of the types of security for a monetary obligation is the possibility of collecting additional interest. How to calculate the interest for using someone else's money if the debt is more than two years old and the refinancing rate has changed repeatedly?

They are called “ interest for the use of other people's funds in case of delay in payment”Are established and recovered only if the party violates the terms of the contract (delay in payment for the delivery of goods, unjustified evasion of debt repayment, unjust enrichment, etc.). By general principles rights, these funds are a kind of guarantee that the money will be paid on time, because no one wants to incur unnecessary expenses.

Interest under Article 395 of the Civil Code of the Russian Federation can be levied as additional sanctions, in addition to those that are spelled out in the obligation itself. This is liability for non-compliance with the terms of the contract established by law.

That is, if your counterparty is in no hurry to pay off the debt, then his responsibility can be “burdened” by calculating the interest for the use of your money and presenting it in court for collection.

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Article 395. Responsibility for failure to fulfill a monetary obligation

1. For the use of other people's funds due to their unlawful withholding, evasion of their return, other delay in their payment, or unjustified receipt or savings at the expense of another person, interest on the amount of these funds shall be paid. The amount of interest is determined by the existing in the place of residence of the creditor, and if the creditor is entity, at its location discount rate bank interest on the day of fulfillment of the monetary obligation or its corresponding part. When collecting a debt in judicial procedure the court may satisfy the creditor's claim based on the discount rate of the bank interest on the day the claim is filed or on the day the decision is made. These rules apply unless a different interest rate is established by law or contract.

2. If the losses caused to the creditor by the unlawful use of his monetary funds exceed the amount of interest due to him on the basis of paragraph 1 of this article, he shall have the right to demand from the debtor compensation for losses in the part exceeding this amount.

3. Interest for the use of other people's funds shall be charged on the day of payment of the amount of these funds to the creditor, if by law, otherwise legal acts or the contract is not established for the accrual of interest more than short term.

4. In the case when the agreement of the parties provides for a penalty for non-performance or improper performance monetary obligations, the interest provided for by this article shall not be subject to collection, unless otherwise provided by law or contract.

5. Calculation of interest on interest (compound interest) is not allowed, unless otherwise provided by law. For obligations fulfilled when the parties carry out entrepreneurial activities, the use of compound interest is not allowed, unless otherwise provided by law or contract.

6. If the amount of interest payable is clearly disproportionate to the consequences of the violation of the obligation, the court, upon the application of the debtor, has the right to reduce the interest provided for by the contract, but not less than to the amount determined based on the rate specified in paragraph 1 of this article.

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From August 1, 2016, to calculate interest for the use of other people's funds, it will be necessary to use the key rate of the Central Bank of the Russian Federation

The amount of interest for the use of someone else's money will need to be calculated based on what was in effect in specific periods of delay. Relevant amendments made Federal law dated 03.07.16 No. 315-FZ, will come into force on 1 August 2016.

From 1 August 2016, interest will need to be determined differently. When calculating, it will be necessary to take into account not the average rates on deposits, but the key rate of the Central Bank of the Russian Federation, in force in the corresponding periods. In this case, a different amount of interest may still be established by law or agreement.

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Penalty rate, how can you calculate the percentage for using someone else's money?

The amount of interest can be determined in the contract. If the amount of interest is not specified in the contract, then it is determined by average bank interest rates on deposits individuals at the place of residence of the creditor - an individual (the location of the creditor - the organization), which are published on the website of the Bank of Russia.

If the non-payments are brought to trial, then the percentage of the bank rate on the day of the court verdict or on the date the claim is sent to court is taken into account.

To calculate the amount of interest for the use of other people's funds, a special calculator is used. It is available on many legal sites, the visitor of the resource just needs to enter the amount of overdue debt and the bank rate.

Meanwhile, it should be borne in mind that the courts, as a rule, require a detailed written calculation, and not a ready-made amount, since it always requires verification. Therefore, if you need a calculation for filing a statement of claim, it is better to know the algorithm for calculating interest, make the calculations yourself on paper or in Excel, and use the calculator for calculating interest for the use of other people's funds for control.

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FORMULA and EXAMPLE of interest calculation under Article 395 of the Civil Code of the Russian Federation for the use of other people's funds

To calculate interest under Article 395 of the Civil Code of the Russian Federation, you need to know that:

• The amount owed must be indicated with VAT.

  Note: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 22, 2009 No. 5451/09 on case No. A50-6981 / 2008-G-10

• The day of payment of funds is included during the period of delay in the fulfillment of a monetary obligation.

  Note: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 28, 2014 No. 13222/13 on case No. A40-107594 / 12-47-1003.

• Delay period must be determined on the basis of 30 days in a month and 360 days in a year, or in calendar days

So, in order to correctly calculate the interest, you need to know the amount of overdue debt, the number of days of delay and the average bank rate.

The Supreme and Supreme Arbitration Courts of the Russian Federation in the Resolutions of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Of the Arbitration Court RF dated October 8, 1998 No. 13/14 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's funds" explained that in the event of a change in the bank interest during the delay, it is advisable to apply the value that is closest to all rates in the specified period. For example, the debt was 200 days, during which the bank interest was 7%, 8% and 8.5%. Based on the above recommendations, the calculation should be based on a rate of 8%.

From the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of October 8, 1998 No. 13/14:

2. When calculating payable annual interest at refinancing rate The Central Bank Russian Federation the number of days in a year (month) is taken to be, respectively 360 and 30 days, unless otherwise established by agreement of the parties, rules binding on the parties, as well as business customs.

So, the calculation of interest for the use of someone else's money is made according to the formula:

Interest amount

Debt amount

Average Bank Rate valid during the period of delay

Number of days overdue

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Calculation of the amount of interest for the use of other people's funds

The formula for calculating interest can be given in the following example.

Initial data for the calculation:

• The amount of the debt under the loan agreement in the city of Kirov is 100,000 rubles.
• Weighted Average Bank Rate in the Volga Federal District - published on the website of the Central Bank of the Russian Federation
• Delay period from 01.01.2015 to 31.08.2015

Calculation of interest for the use of other people's funds under Article 395 of the Civil Code of the Russian Federation

With the amount of debt 100,000 rubles. (Volga Federal District)
interest for the use of someone else's money is:

• from 01.01.2015 to 31.05.2015 (151 days): 100,000 × 151 × 8.25% / 360 = 3,460.42 rubles.
• from 06/01/2015 to 06/14/2015 (14 days): 100,000 × 14 × 11.15% / 360 = 433.61 rubles.
• from 06/15/2015 to 07/14/2015 (30 days): 100,000 × 30 × 11.16% / 360 = 930 rubles.
• from 07/15/2015 to 08/16/2015 (33 days): 100,000 × 33 × 10.14% / 360 = 929.50 rubles.
• from August 17, 2015 to August 31, 2015 (15 days): 100,000 × 15 × 10.12% / 360 = 421.67 rubles.

Total: 6,175.20 rubles.

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CALCULATOR for calculating interest for the use of other people's funds under Article 395 of the Civil Code of the Russian Federation

It should be borne in mind that if the calculated amount of interest money for the use of someone else's money will clearly exceed the results of the violation of a monetary obligation, the court is allowed to reduce them at its own discretion, i.e. pity the offender.

In this case, the courts refer to, which allows you to reduce the amount of interest.

According to general rules, the debtor's lack of money cannot be a reason for releasing him from paying the debt. And if we talk about the sequence of repayment, then the funds under Art. 395 of the Civil Code of the Russian Federation are credited only after the principal amount is paid. Besides, the recoverer has the right to charge them up to the day of fulfillment of obligations under the contract.

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AT WHAT RATE to count interest for the use of someone else's money

The seller (contractor), when agreeing on the text of the contract, may indicate in the contract the rate at which interest will be accrued in case of delay in payment. For example, according to key rate of the Bank of Russia... This is due to the fact that otherwise the debtor would essentially benefit from his illegal behavior, illegally withholding someone else's money and, in fact, taking out loans at a rate several times lower than if he took a loan from a bank. In other words, it is currently impossible to get a loan anywhere at a rate lower than key rate Bank of Russia. Such a condition will discipline the counterparty to fulfill its monetary obligations in good faith.

The key rate of the Central Bank of the Russian Federation is currently the main indicator of the direction monetary policy Bank of Russia.

However, it should be borne in mind that the period of overdue debt can be quite long, up to several years. And the key rate itself was introduced only on September 13, 2013. In addition, its size has constantly changed over time, both up and down. For this reason, the application of the key rate for the entire period of the debt arrears may lead to the fact that the lender will receive less interest than if he was collecting interest at average rates on deposits from individuals. To avoid this kind of situation, you need to weigh in every possible way possible risks collection of interest at the key rate of the Central Bank of the Russian Federation and choose the best option for yourself.

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When collecting a debt in court, the court may satisfy the creditor's claim based on the discount rate of the bank interest on the day the claim is filed or on the day the decision is made. These rules apply unless a different interest rate is established by law or contract. 2. If the losses caused to the creditor by the unlawful use of his monetary funds exceed the amount of interest due to him on the basis of paragraph 1 of this article, he shall have the right to demand from the debtor compensation for losses in the part exceeding this amount. 3.

Section 395

Collection of interest for the use of other people's funds

What could be for illegal use of other people's money?

How to collect interest for the use of someone else's money?

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Using someone else's money

51 of the resolution of the Plenum of the RF Armed Forces and the Plenum of the RF Supreme Arbitration Court of 01.07.96 N 6/8, hereinafter - Resolution N 6/8). Note that when collecting a debt in court, the court can satisfy the creditor's claim based on the bank rate on the day the claim is filed or on the day the decision is made.

How to calculate interest on st

Calculation of interest on 395 Civil Code of the Russian Federation

Calculation of interest for the use of other people's funds - an important stage in drawing up a statement of claim. If you are going to file an application to the court for compensation for material damage, you will need to calculate the cost of the claim, which consists of the amount of the principal debt, as well as interest on it. You will learn how to calculate these percentages correctly from this instruction.

Possibility calculation of interest for the use of other people's funds we are given by Art. 395 of the Civil Code of the Russian Federation. In what cases can you collect interest for the use of someone else's money?

• Due to their illegal retention;
• Due to evasion of return or refusal in it;
• Due to delays in payment of funds;
• Due to their illegal receipt or savings at the expense of others. This means that the person had to use up own funds, however, did not do this, and instead of him the costs were incurred by another person. Or, for example, the debtor did not pay the due remuneration to another person.

The amount of interest is calculated on the basis of a special discount bank interest rate (the so-called refinancing rates of the Central Bank of the Russian Federation), in force during the period of breach of obligations by the debtor to you. If during this time the discount rate has changed, the courts shall accept the rate as close as possible to that which was in effect during the period of delay in payment. As a rule, the value of the rate of the Central Bank of the Russian Federation is taken on the date of the claim or on the date judgment.

Photo - FreeDigitalPhotos

In civil law relations, contracts in which one party acts as a creditor and the other the debtor occupy an essential place. As a rule, such contracts involve the debtor's obligations to the creditor in the form of interest payments for the ability to dispose of the loan. However, in practice, there are situations in which the use of other people's funds without proper permission is observed.

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Basic concepts

To deal with the topic presented, you must first turn to Civil Code... Article 395 of the Civil Code of the Russian Federation regulates the measures of responsibility and the procedure for their introduction for persons who have not fulfilled their monetary obligations.

Such offenses include the following acts:

• Illegal withholding of funds.
• Refund evasion.
• Other delays in return.

For these violations, the Civil Code of the Russian Federation provides for the introduction of penalties in the form of accruing interest on the amount of these funds. The amount of interest is determined by the discount rate of the bank's monetary liability.

The amount is taken that is valid on the day of settlement. It should be borne in mind that in each region the above rate is different. Therefore, for individuals, they are considered at the place of his residence, and for legal entities - at the location of the organization.

The order of recovery for this type of offense has the following characteristics:

• Provided that the actual losses incurred by the lender due to the withholding of his funds exceed the amount that can be obtained based on the standard interest rate scheme, the aggrieved party has the right to claim a larger amount.
• The penalty must be paid to the creditor simultaneously with the entire amount of the debt (unless otherwise stipulated by the contract or law).
• If the amount and procedure for collecting the forfeit was fixed in the primary contract between the creditor and the debtor, then when calculating it, it is necessary to focus on the contract, and not on the law.
• Compound interest is unacceptable for this offense. Unless otherwise specified in the terms of the contract or by law.
• If the estimated amount of the penalty clearly exceeds the amount of damage incurred by the creditor, then the debtor has the right to demand its reduction with the help of the court.

To collect a forfeit, you must file a statement of claim in court. Depending on the parties involved, this can be Arbitration (for legal entities) or the Court of General Jurisdiction (for individuals).

The plaintiff will have to provide evidence that sum of money really enjoyed it. And as practice shows, it is this part that causes serious difficulties.

How to calculate

Starting from 2016, the calculation of the penalty for the offense related to use is carried out based on the key rate of the Central Bank of the Russian Federation. Given that the desired figure is periodically undergoing changes, it is necessary to focus on specific periods of delay.

However, if the interest for the use of funds is supposed to be collected through the court, then a simple final figure cannot be enough. TO statement of claim it is necessary to attach a calculation scheme. Therefore, you always need to know the necessary formula, and use the calculator to check the resulting amount.

To carry out the calculations, you will need the following values:

• The total amount of the available debt (we take into account that the amount must be indicated already with VAT).
• Number of days overdue.
• The size of the average bank rate.

We take into account that the day when the debt was repaid must also be included in the delay period (PP of the Supreme Arbitration Court of the Russian Federation No. 13222/13).

If during the period of delay there have been changes in the amount of the bank interest, then the choice should fall on the value that will be closer to all interest rates available for the period. For example, for the entire period there were three rates: 9%, 7.5%, 7.1%. This means that 7.5 is used for calculations.

The formula for the calculation is as follows:

Total debt x average bank rate/ 360 x the number of days while the delay existed.

The established interest can be accrued to the injured party until the moment when all obligations under the agreement between the creditor and the debtor are fulfilled.

The amount received can be reduced at the discretion of the judge (Article 333 of the Civil Code of the Russian Federation). But for this, the defendant must provide evidence of the fact that the amount of the penalty clearly exceeds the pecuniary damage suffered by the plaintiff. The procedure for reducing the amount of the forfeit is the judge's right, but not his duty.

Every person who invests money in a bank should know how to calculate the percentage for illegal use of funds. And when providing loans, this need is doubly important.

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Colleagues, as I already wrote, my friends and I are writing an article-by-article commentary on the new rules of law of obligations, and I am going to periodically upload my draft comments to some of the most interesting articles... These texts are not final and should not be referred to as a source, as I plan to edit and edit them. In particular, after discussing the draft commentary on Art. 317.1 of the Civil Code, I greatly modified and expanded the text.

It is important for me to receive your comments and suggestions on what else could be added or changed in the text. I would like the comments to reflect all the most interesting and complex issues in the application of these articles of the Civil Code.

Now I am posting a draft of my commentary on Art. 395 Civil Code. Waiting for feedback and comments

Article 395. Responsibility for failure to fulfill a monetary obligation

1. For the use of other people's funds due to their unlawful withholding, evasion of their return, other delay in their payment, or unjustified receipt or savings at the expense of another person, interest on the amount of these funds shall be paid. The amount of interest is determined by the existing at the place of residence of the lender or, if the lender is a legal entity, at the place of its location, published by the Bank of Russia and taking place in the corresponding periods average rates bank interest on deposits of individuals. These rules apply unless a different interest rate is established by law or contract.

2. If the losses caused to the creditor by the unlawful use of his funds exceed the amount of interest due to him on the basis of of this article, he has the right to demand from the debtor compensation for losses in the part exceeding this amount.

3. Interest for the use of other people's funds shall be charged on the day of payment of the amount of these funds to the creditor, unless a shorter period is established for the accrual of interest by law, other legal acts or an agreement.

4. In the event that an agreement of the parties provides for a penalty for non-performance or improper performance of a monetary obligation, the interest provided for in this article shall not be subject to collection, unless otherwise provided by law or contract.

5. Calculation of interest on interest (compound interest) is not allowed, unless otherwise provided by law. For obligations fulfilled when the parties carry out entrepreneurial activities, the use of compound interest is not allowed, unless otherwise provided by law or contract.

6. If the amount of interest payable is clearly disproportionate to the consequences of the violation of the obligation, the court, upon the application of the debtor, has the right to reduce the interest provided for by the contract, but not less than to the amount determined based on the rate specified in of this article.

A comment:

1. Article 395 of the Civil Code of the Russian Federation provides special kind liability for violation of a monetary obligation - accrual of interest on overdue debt. Such a sanction is recognized by most of the European legal order and the main international acts of unification of contract law (Art. 7.4.9 of the UNIDROIT Principles, Art. III.-3: 708 of the EPP Model Rules).

1.1. The annual interest under Article 395 of the Civil Code is, in fact, a special measure, a dispositive form of legal forfeit, specially established for cases of violation of monetary obligations. The fact that interest is precisely the responsibility is indicated by a) the title of the article, b) the fact that, by virtue of paragraph 2 of Art. 395 of the Civil Code, losses incurred by the creditor in connection with the debtor's failure to fulfill the monetary obligation are offset with the amount of interest, which indicates the general nature of these sanctions, and c) the fact that, by virtue of clause 4 of Article 395 of the Civil Code, if there is in the contract conditions for calculating interest in case of delay in payment interest under Art. 395 of the Civil Code shall not be recovered, as if Article 395 of the Civil Code would establish in a dispositive manner a legal penalty, excluded if there is an agreement to the contrary in the contract.

1.2. The recognition of interest as an annual measure of liability gives an answer to the question of the applicability of the general rules on liability to this measure. These rules apply to interest per annum. In particular, Art. 404 of the Civil Code of the Russian Federation (the fault of the creditor). If the debtor's violation of the monetary obligation was partially due to the fault of the creditor, the court has the right to reduce the amount of liability. A controversial issue is the applicability of Art. 401 of the Civil Code on the grounds for exemption from liability. In a number of foreign legal orders, a debtor who is released from liability for a violation, nevertheless, continues to be obliged to pay annual interest for the delay. On the contrary, Russian jurisprudence consistently pursues the idea that interest is a measure of responsibility, makes no exceptions for Article 401 of the Civil Code and proceeds from the fact that the absence of fault or the presence of force majeure (for commercial obligations) exempts from any types of liability, including annual interest ( Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 24, 2002 No. 9651/00, of December 24, 2002 No. 9654/00, of November 21, 2000 No. 7668/99).

1.3. Annual interest under Art. 395 of the Civil Code, being a measure of liability for delays, fundamentally differ from the interest for the use of capital, which are payable on the basis of the rules on loan (credit) agreements, deposits, as well as according to the rules of Art. 317.1 of the Civil Code on legal interest and act not as a sanction, but as a reward to the creditor for being able to use the money owed to him. Accordingly, it is possible to accrue cumulative interest per annum under Art. 395 Civil Code and interest for the use of capital. For more details, see the commentary to Art. 317.1 Civil Code.

1.4. Interest accrual according to the rules of Art. 395 of the Civil Code is provided for cases of violation of a monetary obligation. At the same time, the law knows cases when the application of Art. 395 of the Civil Code is provided for a debtor who has violated a non-monetary obligation. So, by virtue of clause 4 of Article 487 of the Civil Code of the Russian Federation, the seller who received an advance payment, but did not transfer the goods on time, is obliged to pay the buyer interest according to the rules of Art. 395 Civil Code. The emerging paradox (the accrual of interest established in the law for cases of violation of monetary obligations in relation to delay in the performance of a non-monetary obligation) is allowed jurisprudence in such a way that the provision of paragraph 4 of Art. 487 of the Civil Code is interpreted as establishing a legal penalty, the calculation of which is equal to the calculation of interest under Art. 395 of the Civil Code (Resolution of the Presidium of the Supreme Arbitration Court of December 10, 2013 No. 10270/13). It follows from this conclusion that the accrual of interest on the amount of goods that were not delivered on time is a unique element of the legal regime of the sales contract. This thesis can be considered controversial, since there is no convincing reason to provide for the application of Article 395 of the Civil Code in such cases only for sales contracts. The position of the buyer who made an advance payment and did not receive the goods on time is essentially no different from the position of the customer who made the advance payment and faced with the counterparty's failure to fulfill counter obligations to provide services and perform work. Accordingly, there is every reason to apply paragraph 4 of Article 487 of the Civil Code by analogy with the law and in relation to other compensated bilateral agreements providing for prepayment.

According to direct instructions in clause 4 of article 487 of the Civil Code, the contract may provide for the accrual of interest from the moment the prepayment is made. In this case, such interest must be paid until the actual fulfillment of the obligation to transfer the thing or return of the prepayment upon termination of the contract. Clause 13 of the Resolution of the Plenum of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation of 08.10.1998 N 13/14 states that in such cases, interest is of the nature of interest on commercial loan(Article 823 of the Civil Code). This approach was further confirmed in jurisprudence(Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 28, 2006 N 12769/05). If there is no such indication in the contract, then no interest should be accrued for the period of use of the prepayment provided for in the contract, since a) during this period there is no violation and there are no grounds for the application of such a measure of liability as annual interest under Article 395 of the Civil Code, and b) payment for the use of capital for the specified advance period for general rule considered included in the price. It should be noted that in modern conditions, apparently, it would be logical to proceed from the fact that such interest, the accrual of which, by virtue of a direct indication in the contract, occurs from the moment the prepayment is made, have the nature of legal interest. As noted in the commentary to Article 317.1 of the Civil Code, if the party that received the advance payment does not carry out its counter execution and uses the money unreasonably, there are grounds to recover from it from the moment of delay as interest under Article 395 of the Civil Code as a legal penalty for violating its counterpart. liabilities and legal interest acting as remuneration for the use of capital that has not been taken into account in the price (through the application of Article 317.1 of the Civil Code by analogy with the law). But nothing prevents the parties from separating the fee for the use of capital from the price and establishing the payment of such a fee from the moment of payment of the advance payment. In the latter case, the person who received the prepayment will pay legal interest from the moment the prepayment is made until the moment of counter execution or return of the prepayment upon termination of the contract, and from the moment of delay in the fulfillment of the counter obligation, interest under Article 395 of the Civil Code will be added to such interest as measures of responsibility for violation of their obligations.

When the party that made the prepayment (advance) and did not receive the proper counter performance, lawfully terminated the contract and demanded the return of the prepayment (advance), interest is to be accrued retrospectively, that is, not from the moment of termination and the emergence of the party in breach of the contract of its own monetary obligation to return the prepayment ( advance payment), and from the moment this party receives such an advance payment (advance payment). This conclusion is enshrined in paragraph 5 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 35 of June 6, 2014, while the SAC indicates that such interest is payable precisely according to the rules of Article 395 of the Civil Code. The very decision on the retrospective accrual of interest upon termination of the contract is absolutely justified, since otherwise the seller (contractor, performer) would receive the right to use the money free of charge for the period from the moment of receiving the advance payment until the termination of the contract. At the same time, the reference to Article 395 of the Civil Code is not entirely accurate. In fact, the payment of interest from the moment the prepayment is made upon termination of the contract is a payment for the use of capital (Article 317.1 of the Civil Code). As a general rule, the parties include the fee for using the money for the prepayment period in the contract price. But since the contract is terminated and the exchange does not take place, the opportunity to receive a counter-provision that compensates for this fee is eliminated. Therefore, such compensation must be made in the form of interest accrual from the date of prepayment. Such interest is subject to accrual from the moment the prepayment is made until the moment the prepayment is returned after termination. At the same time, the person who made the prepayment is also entitled to demand from the debtor, who has not fulfilled his counter-obligation, to pay, as a measure of responsibility, interest per annum under Article 395 of the Civil Code from the moment of delay in the implementation of the counter-execution and until the actual return of the prepayment.

1.5. Interest is subject to accrual on the debtor who has delayed the repayment of the debt, that is, in cases where money is used as a means of payment. Therefore, Article 395 of the Civil Code is not applicable in relation to the obligation of the carrier carrying banknotes, or in relation to currency exchange agreements in which money acts as a commodity (clause 1 of the resolution of the Plenum of the Armed Forces and the Supreme Arbitration Court of the Russian Federation No. 13/14 of October 08, 1998).

1.6. Russian judicial practice does not recognize the possibility of accruing interest per annum on the amount of unpaid advance payment (or prepayment) on time. See: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 8, 2007 No. 15651/06. From the point of view of systemic consistency, apparently, interest cannot be charged on an annual basis and in case of violation by the bank of its obligation to transfer the loan amount to the borrower. Apparently, the courts do not consider the obligation to lend (bank or commercial) to be an element of a full-fledged monetary debt.

1.7. According to judicial practice, annual interest is charged on the entire amount of the monetary debt, including VAT (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation on September 22, 2009 No. 5451/09).

1.8. The obligation to repay contractual or tort losses, as well as contractual or legal forfeit, is a full-fledged civil obligation, subject to the payment of money. In particular, therefore, it is allowed to offset the forfeit and the body of the counter debt (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 19, 2012 N 1394/12), and the novation of the penalty in the body of the principal debt or a separate loan obligation (clause 4 of the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of 21 December 2005 N 103), and a separate assignment of rights to collect forfeit (clause 16 of the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 30, 2007 N 120). And since such an obligation is monetary in nature, the amount of the awarded contractual and tort losses or forfeit is subject to interest accrual under Article 395 of the Civil Code. See: clause 23 of the resolution of the Plenums of the RF Armed Forces and the RF Supreme Arbitration Court No. 13/14 of October 8, 1998 (interest on the amount of compensation for non-contractual damage); Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 4, 2013 No. 18429/12, dated November 19, 2013 No. 6879/13 (interest on the amount of the penalty awarded by the court); dated June 8, 2010 N 904/10 (interest on the amount of damages awarded by the court). Previously, in practice, there were opposite examples of refusal to collect interest on the amount of losses or forfeit (see, for example: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 8, 2010 No. 904/10), but in last years this fundamentally wrong position has been rejected.

According to judicial practice, interest per annum begins to be calculated from the date of entry into force of the court decision on the recovery of damages (forfeit) and act as a measure of responsibility for delay in the performance of such an obligation. If the defendant in a claim for damages is the Russian Federation or a constituent entity of the Federation, then, taking into account the peculiarities of the execution of court decisions on the recovery of money from the treasury, provided for in budgetary legislation, the calculation of interest on the amount awarded by the court begins, subject to the presentation by the recoverer writ of execution to the appropriate financial authority and after a three-month period (Question No. 3 from the Review of judicial practice of the Supreme Court of the Russian Federation No. 1 (2015), approved by the Presidium of the Supreme Court of the Russian Federation on March 04, 2015; Determination of the RF Armed Forces dated August 04, 2015 No. 308-ES15- 3667).

If, at the same time, the principal debt has not yet been paid off and the creditor requires the accrual of interest for the period after the filing of the claim and before the actual execution of the court decision on debt collection (for such a possibility of collecting a penalty, see the commentary to Article 330 of the Civil Code), then the accrual of interest per annum on these penalties , accrued by a court decision "for the future", apparently, should not be allowed. This conclusion follows from the systemic interpretation of paragraph 5 of Article 395 of the Civil Code, according to which the accrual of interest on interest is generally not allowed. If it is impossible to accrue interest on previously accrued interest (that is, one periodic sanction for non-performance of another), then it is hardly possible to accrue interest on interest accrued by a court decision.

1.9. Prior to June 1, 2015, interest was calculated at the discount rate of the bank interest, which for liabilities denominated in rubles, according to established judicial practice, was considered the refinancing rate of the Bank of Russia. According to new edition Clause 1 of Article 395 of the Civil Code, which entered into force on June 1, 2015, interest is calculated according to the average rates on deposits of individuals published by the Bank of Russia. Such statistics are regularly published by the Bank of Russia. This decision of the legislator is not entirely logical. The refinancing rate, in fact, is no longer updated and has lost its significance, having been replaced by the Bank of Russia with such a monetary policy instrument as the key rate, which now reflects the cost of refinancing commercial banks by the Bank of Russia. Accordingly, it would be much more logical to include in Article 395 of the Civil Code an indication of the key rate.

By virtue of clause 2 of Article 4 of the Civil Code of the Russian Federation on monetary obligations overdue before June 1, 2015, but not repaid by this date, interest is subject to accrual for the period up to May 31 inclusive at the refinancing rate of the Bank of Russia, and for the period from June 1 - at average rates on deposits of individuals.

1.10. For monetary obligations denominated in foreign currency(including if there is a "currency clause" in the agreement on the payment in rubles of an amount equivalent to the corresponding amount in foreign currency at the established rate) average percentage on short-term loans in foreign currency at the location of the creditor (clause 52 of the resolution of the Plenums of the RF Armed Forces and the Supreme Arbitration Court of the Russian Federation No. 6/8 of July 1, 1996, paragraph 8 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 4, 2002 No. 70). This approach was relatively consistent with the fact that the interest rate on ruble debts was determined as the lending rate, namely the refinancing rate (that is, the rate at which the Bank of Russia lent commercial banks). Taking into account the fact that from June 1, 2015, instead of credit rate to calculate interest under Article 395 of the Civil Code, the rate on deposits is taken into account, the approach to determining interest on foreign exchange obligations must be simultaneously changed. Apparently, from June 1, 2015 on liabilities denominated in foreign currency, interest should be calculated based on the average rate on deposits of individuals in the corresponding foreign currency.

1.11. Until June 1, 2015, the interest rate was determined at the time of the voluntary repayment of the debt, and in the case of debt collection - on the day the claim was filed or the decision was made. According to the new version, the interest rate is applied in the corresponding period of time within the period of delay. Accordingly, if the Bank of Russia publishes statistics on average rates on deposits of individuals twice a month, in relation to each of such periods of time, the Bank of Russia determined average rate percent. This allows you to more adequately reflect the change interest rates during the entire period of delay. Otherwise, in the event of a tendency towards a decrease in average rates, a situation could arise when the creditor, when collecting the debt, could receive interest for the entire period of delay (possibly long enough) at a rate significantly lower than those that dominated during the period of delay. When the court awards interest per annum "for the future" (that is, until the actual execution of the court decision on the collection of the principal debt), the court must also indicate that such interest should be determined at the average rates on deposits of individuals established by the Bank of Russia for the corresponding forthcoming periods of time. The final calculation of the interest accrued “for the future” should be made taking into account these rates determined by the Bank of Russia in the execution of the court decision on the collection of the principal debt.

1.12. By virtue of a direct indication in clause 1 of Article 395 of the Civil Code, a different interest rate may be provided for in a law or agreement. It can be either less or more than the average rates on deposits of individuals determined by the Bank of Russia in relation to the corresponding periods of time within the delay period. In this case, it should be assumed that the condition of the contract on the establishment of an extremely insignificant level of interest may not be recognized by the court in cases where such a condition was imposed on the weak side of the contract (Articles 10, 169, 428 of the Civil Code of the Russian Federation). This conclusion follows from paragraph 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 16 of March 14, 2014.

1.13 Clause 1 of Article 395 of the Civil Code does not contain explicit attributes of the imperativeness or dispositiveness of the rule on the accrual of interest on overdue debt. Guided by clauses 2-4 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 16 of March 14, 2014, one should come to the conclusion that this rule is dispositive, since there are no obvious interests in the name of which the imperativeness of the rule on calculating interest on overdue duty. The exclusion of the right to collect interest per annum does not violate public interests, the interests of third parties, and can hardly be considered as a gross violation of the balance of interests of the parties, since such a condition does not block the creditor's right to claim damages on a general basis. At the same time, given that the proof of losses caused by non-payment is often quite difficult and interest collection is in many cases the only hope of obtaining compensation in case of delay, the condition on the exclusion of interest should be considered not entirely fair and balanced. Accordingly, in cases where such a condition is imposed on the weak side of the contract, the court should have the right not to recognize such a condition on the basis of Articles 10, 169 or 428 of the Civil Code (clause 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 16 of March 14, 2014).

2. Clause 2 of Article 395 of the Civil Code establishes the offset ratio of interest per annum and losses, which is generally typical for a forfeit (Clause 1 of Article 394 of the Civil Code). The creditor has the right to demand the recovery of losses in an amount exceeding the amount of accrued interest. At the same time, from the systemic interpretation of Articles 394 and 395 of the Civil Code, it follows that the parties have the right to agree that losses will be reimbursed in full in addition to the accrued interest (penalty interest).

At the same time, the credit ratio should be determined only with losses caused by an immediate delay in payment. If the creditor, faced with a delay in payment, terminates the contract and requires, on the basis of clause 5 of article 453 of the Civil Code, article 393.1 or article 524 of the Civil Code, compensation for losses caused by involuntary termination (for example, abstract losses under clause 2 of article 393.1 of the Civil Code ), such losses are subject to recovery in full in addition to the accrued interest.

3. According to clause 3 of article 395 of the Civil Code, interest is payable on the day of actual repayment of the debt.

3.1 The day of payment of the debt is included in the interest calculation period (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 28, 2014 No. 13222/13).

3.2. If the debt has not been repaid by the time the court goes to court and the creditor requires it to be paid off, he has the right to ask the court to collect interest for the period prior to filing a claim with the court in the form of a fixed accrued amount, and from the moment the claim is filed until the actual execution of the decision to recover the principal debt - at the appropriate rate. The accrual of interest per annum "for the future", that is, until the date of the actual repayment of the debt on the basis of a court decision, is provided for in paragraph 51 of the resolution of the Plenums of the RF Armed Forces and the Supreme Arbitration Court of the Russian Federation No. 6/8 of July 1, 1996, as well as in paragraph 1 of the resolution of the Plenum of the Supreme Arbitration Court No. 22 dated April 4, 2014. In this case, the court decision indicates the need to calculate the total amount of interest for the period before the actual execution of the decision to collect the principal debt in accordance with the average rates on deposits of individuals that will be available in the corresponding periods of time within this period. National tax is calculated based on the amount accrued for the period as of the date of filing a claim with the court (clause 1 of the resolution of the Plenum of the Supreme Arbitration Court No. 22 dated April 4, 2014). The final calculation of interest subject to accrual for the future according to the court decision is carried out when executing the court decision on the collection of the principal debt by the bailiffs-executors or the bank (when writing off the awarded debt on the basis of a writ of execution without the help of bailiffs-executors).

3.3. According to clause 3 of article 395 of the Civil Code, a law, other legal acts or an agreement may provide for a shorter period for calculating interest. In this case, it should be assumed that the condition of the contract on the establishment of a shorter period for calculating interest (especially in cases where such a period is extremely insignificant) may not be recognized by the court in cases where such a condition was imposed on the weak side of the contract (Article 10, 169, 428 of the Civil Code of the Russian Federation). This conclusion follows from paragraph 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 16 of March 14, 2014.

4. Clause 4 of Article 395 of the Civil Code, as a general rule, excludes the simultaneous collection of the contractual penalty for late payment and interest per annum. If there is such a penalty (for example, a penalty) in the agreement, the creditor has the right to demand payment of just such a penalty, and the right to collect interest is blocked. But the parties to the contract or the law have the right to establish otherwise (namely, the cumulative recovery of forfeit and interest, or the application of one of these measures at the choice of the creditor). In addition, the cumulative collection of a forfeit for late payment and interest per annum is permissible in the case when, by virtue of a direct indication in the contract or law, the forfeit is of a penalty nature (clause 34 of the Resolution of the Plenum of the RF Armed Forces of June 28, 2012 N 17, clause 15 Resolutions of the Plenums of the RF Armed Forces and the RF Supreme Arbitration Court No. 13/14 of October 8, 1998).

5. According to clause 5 of article 395 of the Civil Code, the law may provide for the accrual of interest on previously accrued interest (compound interest). As a general rule, compound interest is not allowed. The inclusion of a compound interest clause in an agreement is allowed only in relation to agreements concluded within the framework of entrepreneurial activities by its parties. At the same time, it is obvious that this norm speaks of the accrual of interest per annum under article 395 of the Civil Code on interest per annum, previously accrued by virtue of the same article. Refusal to accrue interest per annum on previously accrued interest per annum as general rule quite logical, since otherwise an endless "heap" of interest on interest would have formed, which hardly corresponds to the will of the majority of counterparties. At the same time, it seems that from the moment the court awards (the entry into force of the court decision on the collection) interest per annum, calculated as a fixed amount for the period of delay preceding the appeal to the court, interest should be charged on this amount under Article 395 of the Civil Code. In fact, the court's award of interest "merges" them with the amount of the principal debt, and in this case legal nature this awarded monetary debt (principal or previously accrued interest) loses its meaning. At the exit, there is a court decision on the recovery of a certain amount, and on this entire amount, in case of non-execution of the court decision, annual interest should be charged under Article 395 of the Civil Code. The court awards such a debt, consisting of the principal and previously accrued interest, and indicates in judgment that this total amount"For the future" interest is subject to annual interest until the actual execution of the court decision on debt collection. At the same time, apparently, the accrual of interest per annum on interest per annum, subject to accrual before the actual execution of the court decision on debt collection, would be excessive, since otherwise there would be a threat of endless "piling up" of one interest on another.

The question also arises as to whether interest under Article 395 of the Civil Code is subject to the general rule of accrual on unpaid interest on a loan, credit and legal interest under Article 317.1 of the Civil Code. According to clause 15 of the Resolution of the Plenums of the Armed Forces and the Supreme Arbitration Court of the Russian Federation No. 13/14 dated October 8, 1998, interest under Article 395 of the Civil Code is not subject to accrual on unpaid interest on a loan / credit, unless otherwise specified in the law or agreement. This decision is fundamentally wrong, since in the case of a loan and a loan, the payment of interest for the use of borrowed capital is the only form of reflection of the price of the contract and the remuneration of the lender (bank). In the absence in the agreement of a clause on penalties charged for non-payment of interest on a loan (credit), the borrower is able to with impunity not make the due payment for the "services" of the lender (bank) with impunity. Failure to receive by the lender (bank) the interest due to it on time means nothing more than a violation of the monetary obligation to pay and should entail liability under the rules of Article 395 of the Civil Code, not in cases when this is directly indicated in the law or contract, but according to the general rule. In this case, interest under Article 395 of the Civil Code must be accrued on the amount of interest unpaid on time for the corresponding billing month from the date of the expiration of the term for their payment. When the lender (bank) demands in court, in addition to repaying the principal debt and the interest on the loan (credit) accrued before the lawsuit is filed with the court, also collecting interest on the borrowed capital "for the future", that is, until the principal debt is repaid, the court must in court the decision to indicate the formula for calculating interest per annum on the amount of interest on borrowed capital, subject to accrual from the moment the claim is filed until the actual collection of the principal debt. Otherwise, a strange situation would turn out in which, before the loan is awarded, the borrower pays annual interest under Article 395 of the Civil Code on the amount of interest on the loan (loan) unpaid on time, and after the award, his position paradoxically improves and he is released from liability for non-payment of interest for capital. A similar solution, apparently, should be applied to legal interest, which is of a nature similar to the nature of interest on borrowed capital.

6. By virtue of clause 6 of article 395 of the Civil Code, the court has the right to reduce the amount of interest per annum in the event of an obvious disproportion of such interest to the consequences of a breach of the obligation, but not lower than the level that corresponds to the average rates on deposits of individuals. Accordingly, the application of this provision is possible only in cases where the contract or law provides for an increased level of interest. In this case, in the case when the increased interest is established in the contract and is payable by the person carrying out entrepreneurial activity, the rules of clause 2 of article 333 of the Civil Code should be applied, according to which the contractual penalty payable by such a person can be reduced by the court only at the request of the debtor and only in exceptional cases. The application of Article 333 of the Civil Code here is absolutely justified, since the increase in the agreement of the level of interest per annum for failure to fulfill a monetary obligation, in fact, is indistinguishable from the establishment of a contractual penalty