Illegal use of other people's funds. Calculation of interest for the use of other people's funds

How to apply the provisions on interest for the use of other people's funds under Article 395 of the Civil Code of the Russian Federation in connection with the latest changes in the Civil Code of the Russian Federation.

Changes in the Civil Code of the Russian Federation affected interest under Art. 395 of the Civil Code of the Russian Federation. Calculating the interest charged for using someone else's money has become more complicated. Now it is carried out, like the calculation of legal interest, for each accrual period at the rate corresponding to this period. Previously, there were only three possible rates at which the entire period of non-fulfillment was calculated: on the date of going to court, the date of the decision, and the date of actual fulfillment of the monetary obligation.

The question arises of how to calculate interest on previously incurred (before June 1) debts. The courts almost unanimously take the position that interest under Art. 395 of the Civil Code of the Russian Federation represent a reaction to the daily offense of non-repayment of debt and average rates begin to be applied to previously incurred debts after June 1. This approach, according to the courts, corresponds to the positions of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in cases No. A53-17917/2006 and No. A55-19316/2011.

The standard interest rate has also changed; now, instead of the refinancing rate, it is necessary to use the average bank interest rates on deposits of individuals. A different amount may be provided by agreement or law. Information on average rates by district is published by the Bank of Russia on its website (section Statistics / Banking sector / Interest rates and structure of deposits...). Such rates are recognized as statistical, that is, they are calculated only for periods that have already occurred.

Considering the delay in the publication of statistics on average rates and the impossibility of determining them for the future, a formal contradiction arises with paragraph 51 of the resolution of the RF PVS, the Supreme Arbitration Court of the Russian Federation dated 01.07.96 No. 6/8, which provides for the possibility of accruing interest before the date of actual fulfillment of the obligation, but at the same time the accrual rate must be determined in the judicial act.

However, the courts do not consider this an obstacle to the plaintiff exercising his right to receive satisfaction of his claims and formulate the operative part of the judicial act indicating that the calculation of accrued interest is based on the average bank interest rates on deposits of individuals at the plaintiff’s location, published by the Bank of Russia and taken place during the relevant periods.

In practice, the question also arises about the possibility of collecting amounts calculated at a rate of 8.25 percent. The courts satisfy such requirements, since the level of average rates is higher than the refinancing rate and, therefore, this does not upset the balance of interests. This applies to collection both for a specific period.

Moreover, a higher court may change the decision of the first instance if the plaintiff claimed interest at a rate of 8.25 percent, and by the period after 06/01/15 the court itself took into account the changes in Article 395 of the Civil Code of the Russian Federation and went beyond the plaintiff’s requirements by increasing the rate.

It is impossible to collect interest under Article 395 of the Civil Code of the Russian Federation if the parties have agreed on a penalty or the right to a reduction. Another innovation is paragraph 4 of Art. 395 of the Civil Code of the Russian Federation: it is impossible to make a claim for the recovery of interest under Art. 395 of the Civil Code of the Russian Federation, if the agreement provides for a penalty (Article 330 of the Civil Code of the Russian Federation). The courts do not satisfy such demands. They are not satisfied, even if the plaintiff did not declare a penalty, but the corresponding condition is in the contract. However, an agreement or law may provide for other options: simultaneous collection of penalties and interest or collection of only penalties.

Clause 6 of Art. 395 of the Civil Code of the Russian Federation provides for the possibility of reducing interest, if its amount is clearly disproportionate to the consequences of violation of the obligation, to a level based on average rates (clause 1 of Article 395 of the Civil Code of the Russian Federation). This applies to cases where the parties have stipulated in the contract a different, increased interest rate for the use of other people's funds. The court reduces the amount only if there is a corresponding application from the debtor.

With the introduction of Art. 317.1 of the Civil Code of the Russian Federation, the question arose whether, simultaneously with the demand for the collection of legal interest, a demand for the recovery of interest under Article 395 of the Civil Code of the Russian Federation could be presented. Taking into account their different legal nature, legal interest is the minimum means of compensation for the use of benefits, and interest under Art. 395 of the Civil Code of the Russian Federation - a measure of liability for violation of an obligation; these requirements can be presented simultaneously.

However, you can find judicial acts with a different approach. In such court decisions, legal interest was regarded as a measure of liability and noted the impossibility of simultaneously applying two measures of liability - legal interest and interest under Art. 395 of the Civil Code of the Russian Federation. At the same time, the judges satisfied the requirements under Art. 395 of the Civil Code of the Russian Federation, and not under Article 317.1 of the Civil Code of the Russian Federation, since the deadline for fulfilling obligations was violated.

Interest under Article 395 of the Civil Code of the Russian Federation is counted towards the amount of losses caused by non-fulfillment or improper fulfillment of a monetary obligation.

Thus, creditors received new ways of influencing the debtor. The illegal behavior of a person who has delayed the execution of a judicial act becomes increasingly unprofitable and costly for her. However, judicial practice has not yet developed clear mechanisms for applying the new rules, so it is necessary to monitor the changes that are taking place.

Since August 1, 2016, Article 395 and Article 317.1 of the Civil Code of the Russian Federation have been in force in a new edition. What has changed since this date?

Article 395 of the Civil Code of the Russian Federation has now undergone the following three changes:

1. Now, when calculating interest, the key rate of the Bank of Russia is used, and not the average bank interest rates on deposits of individuals.

2. The words “for using other people’s funds” were excluded from the article.

3. The words “unjustified receipt or savings at the expense of another person” were excluded from the article.

Calculation example:

CALCULATION
interest under Article 395 of the Civil Code of the Russian Federation

The amount of debt is 100,000 rubles.

The location (place of residence) of the creditor is the Central Federal District (CFD).

– interest for the period from 01/01/2015 to 05/31/2015 (151 days) = 100,000 rubles. × 8.25% (rate
refinancing): 360 days. × 151 days = 3460.42 rub.

– interest for the period from 06/01/2015 to 06/14/2015 (14 days) = 100,000 rubles. × 11.80% (rate
bank interest on deposits of individuals in the Central Federal District for the period from 06/01/2015): 365 days. × 14 days
= 452.60 rub.;

– interest for the period from June 15, 2015 to July 14, 2015 (30 days) = RUB 100,000. × 11.70% (rate
bank interest on deposits of individuals in the Central Federal District for the period from June 15, 2015): 365 days. × 30 days
= 961.64 rubles;

– interest for the period from July 15, 2015 to August 16, 2015 (33 days) = RUB 100,000. × 10.74% (rate
bank interest on deposits of individuals in the Central Federal District for the period from July 15, 2015): 365 days. × 33 days
= 971.01 rub.;

– interest for the period from August 17, 2015 to September 14, 2015 (29 days) = RUB 100,000. × 10.51% (rate
bank interest on deposits of individuals in the Central Federal District for the period from August 17, 2015): 365 days. × 29 days
= 835.04 rub.;

– interest for the period from September 15, 2015 to October 14, 2015 (30 days) = RUB 100,000. × 9.91% (rate
bank interest on deposits of individuals in the Central Federal District for the period from September 15, 2015): 365 days. × 30 days
= 814.52 rub.;

– interest for the period from October 15, 2015 to November 16, 2015 (33 days) = RUB 100,000. × 9.49% (rate
bank interest on deposits of individuals in the Central Federal District for the period from October 15, 2015): 365 days. × 33 days
= 858 rub.;

– interest for the period from November 17, 2015 to December 14, 2015 (28 days) = RUB 100,000. × 9.39% (rate
bank interest on deposits of individuals in the Central Federal District for the period from November 17, 2015): 365 days. × 28 days
= 720.33 rub.;

– interest for the period from December 15, 2015 to December 31, 2015 (17 days) = RUB 100,000. × 7.32% (rate
bank interest on deposits of individuals in the Central Federal District for the period from December 15, 2015): 365 days. × 17 days
= 340.93 rub.;

– interest for the period from 01/01/2016 to 01/24/2016 (24 days) = 100,000 rubles. × 7.32% (rate
bank interest on deposits of individuals in the Central Federal District for the period from December 15, 2015): 366 days. × 24 days
= 480 rub.;

– interest for the period from January 25, 2016 to February 18, 2016 (25 days) = RUB 100,000. × 7.94% (rate
bank interest on deposits of individuals in the Central Federal District for the period from January 25, 2016): 366 days. × 25 days
= 542.35 rub.;

– interest for the period from February 19, 2016 to March 16, 2016 (27 days) = RUB 100,000. × 8.96% (rate
bank interest on deposits of individuals in the Central Federal District for the period from February 19, 2016): 366 days. × 27 days
= 660.98 rub.;

– interest for the period from March 17, 2016 to April 14, 2016 (29 days) = RUB 100,000. × 8.64% (rate
bank interest on deposits of individuals in the Central Federal District for the period from March 17, 2016): 366 days. × 29 days
= 684.59 rub.;

– interest for the period from April 15, 2016 to May 18, 2016 (34 days) = RUB 100,000. × 8.14% (rate
bank interest on deposits of individuals in the Central Federal District for the period from April 15, 2016): 366 days. × 34 days
= 756.17 rub.;

– interest for the period from May 19, 2016 to June 15, 2016 (28 days) = RUB 100,000. × 7.90% (rate
bank interest on deposits of individuals in the Central Federal District for the period from May 19, 2016): 366 days. × 28 days
= 604.37 rub.;

– interest for the period from June 16, 2016 to July 14, 2016 (29 days) = RUB 100,000. × 8.24% (rate
bank interest on deposits of individuals in the Central Federal District for the period from June 16, 2016): 366 days. × 29 days
= 652.90 rub.;

– interest for the period from July 15, 2016 to July 31, 2016 (17 days) = RUB 100,000. × 7.52% (rate
bank interest on deposits of individuals in the Central Federal District for the period from July 15, 2016): 366 days. × 17 days
= 349.29 rub.

– interest for the period from 01.08.2016 to 01.09.2016 (32 days) = 100,000 rubles. × 10.50% (key
rate) : 366 days. × 32 days = 918.03 rub.

Total amount of interest for the use of other people's funds for the period from January 1
2015 to September 1, 2016 is 15,063.17 rubles.

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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 a claim in 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 correctly calculate these percentages from this instruction.

Opportunity calculating interest on the use of other people's funds Art. gives us 395 Civil Code of the Russian Federation. In what cases can you charge interest for using someone else's money?

Due to their illegal retention;
Due to evasion or refusal of return;
Due to delays in payment of funds;
Due to their unlawful receipt or savings at the expense of others. This means that the person should have spent his own funds, but did not do so, and another person made the expenses instead. Or, for example, the debtor did not pay the due remuneration to another person.

The amount of interest is calculated based on a special bank interest rate (the so-called refinancing rates of the Central Bank of the Russian Federation), valid during the period of violation of the debtor’s obligations to you. If the discount rate has changed during this time, the courts will accept a rate that is as close as possible to the one that was in effect during the period of late payment. As a rule, the value of the Central Bank of the Russian Federation rate is taken on the date of filing the claim or on the date court decision.

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V. Khokhlov, Associate Professor of the Department of Law, Economic and Legal Faculty of the Samara State Economic Academy, Candidate of Legal Sciences.

The new Civil Code of the Russian Federation established a special type of liability for failure to fulfill monetary obligations in the form of payment of interest for the use of other people's funds (Article 395). The practical application of the provided norm (especially the correct calculation of interest) showed the need for a more specific disclosure of issues in the area of these relations for the justified and effective use of the law.

Of course, one of the main reasons for the introduction of this rule was the need to strengthen the protection of the violated rights of the creditor and restore his property status. Essentially, we are talking about the introduction of a third type of basic (universal) sanctions in commercial circulation. After all, it is well known that compensation for losses, despite the universality of this measure of property liability, has not been widely used, and penalties in many economic and legal relations are often not provided for and are not included in the text of the relevant agreements. The introduction of the rule on the recovery of interest gives the injured party another basis for compensation for losses incurred.

The collection of interest is also punitive in nature, since it not only compensates for the losses of the victim, but also punishes the violator, who does not always receive a property benefit from the delay in funds. In any case, the element of punishment is obvious: the legislator does not make the collection of interest dependent on the fact that the offender receives a benefit.

When applying Art. 395 of the Civil Code, it is necessary to take into account the not directly stated goal of protecting the interests of the creditor from the consequences of inflation. Today, the norm in question is practically the only legitimate rule that allows you to adjust (increase) the repayable debt and take into account the decrease in its real value.

Previously (before the introduction of the Fundamentals of Civil Legislation), only five percent per annum was subject to recovery, which was fully consistent with the international interest rate and did not raise any special objections in the absence of inflation.

Current legislation provides for an increase in the amount paid under a monetary obligation, unless it is intended directly for the maintenance of a citizen (Article 318 of the Civil Code). In other cases, no debt adjustment is made. Of course, there remains the possibility of compensation for these losses through damages (Articles 15 and 393 of the Civil Code). So, in paragraph 3 of Art. 393 allows the possibility of using prices existing on the day the court makes a decision on compensation for damages. But this rule can be applied when the issue of collecting losses is resolved positively, and in fact is only an indirect way of taking into account inflation.

To calculate the interest to be collected, you need to know the following initial parameters:

existence of grounds for application of this norm;
the amount of money on which interest is calculated;
interest rate;
the moment from which interest is calculated;
the period for which they are accrued;
the presence or absence of limiting factors, including the ratio of the amount of interest collected to the amounts of other sanctions.

The basis for the recovery of damages consists of a complex legal structure: unlawful possession and use of other people's funds. But, I think, it is advisable to exclude the second basis. When the law establishes that interest is payable “for use,” it hardly implies the need to establish that the debtor derives income or other benefit from the amounts withheld. It is doubtful that law enforcement practice will follow this path.

Thus, it is enough to prove the presence of one circumstance - the debtor unlawfully owned other people's funds. The above formulation, in my opinion, covers all possible cases: a delay in the partner’s transfer of the required amount, a statement about the absence of debt in cases where there is actually one, receipt and possession of an erroneously transferred amount, etc. If a violation of settlement discipline has occurred, but there is no ownership of the amount of money (for example, the amount not transferred to the partner is in the account of the cash settlement center), interest should not be collected and we may be talking about applying other sanctions to the bank or counterparty (for example, penalties).

When the law (Article 395 of the Civil Code) speaks of liability for the use of “other people’s funds,” does this mean the possibility of collecting interest only in cases where the debtor withholds money received from the creditor (“other people’s” money)? Of course not. In the context of this article, other people's money should also be understood as the debtor's money, which he is obliged to pay for products (goods, work, services). Or in other words: this is any money in respect of which the creditor (affected organization) has a right of claim.

The regulation of obligations resulting from unjust enrichment (contingent obligations) in the Code has been significantly expanded and fundamentally updated. Special mention should be made of unjustified receipt (savings), which by law also entails the payment of interest. Unjustified acquisition of property without appropriate legal grounds and the consequences arising from it are now regulated by Art. 1102 - 1109 Civil Code. A person who has received any property without proper grounds (not by virtue of law, regulations or a transaction) and at the expense of another is obliged to return it to the victim (with the exception of the cases specified in Article 1109 of the Civil Code). Interest on conditional obligations accrues from the time when the acquirer learned or should have learned about the unjustification of receiving or saving funds (see paragraph 2 of Article 1107).

Thus, the obligations in question differ significantly from other grounds provided for in Art. 395 Civil Code. Unjustified receipt is not only passive behavior, but also, as a general rule, is not associated with guilt (cf. paragraph 2 of Article 1102). Therefore, it would be unfair to require such a person to transfer interest simply because someone mistakenly transferred a sum of money to him. It is advisable to differentiate the norms of Art. 395 and 1107 of the Civil Code, establishing the obligation to pay interest in case of unjustified receipt only for two persons:

professionally working in the financial market as business entities, that is, capable of extracting income from an erroneously received amount of money;
knowing (initially) that they do not have the right to

receiving these funds and having the opportunity to return the funds to their owner (rightful recipient).

The law's indication that interest is accrued from the time “when the acquirer learned or should have known about the unjustification of receiving or saving funds” does not change the assessment of the situation. However, to date there are many shortcomings in the organization of payments and the banking system. Information about the reasons for the transfer and the payer (copies of documents accompanying the payment) may arrive much later than 20 days, as provided for by the current rules, or may not arrive at all. Therefore, it is not easy to establish with certainty the time when the recipient “knew or should have known about the unreasonableness” of the transfer. In addition, even if he found out about the “unfoundedness”, he does not always have the opportunity to return the money received (for example, due to the lack of exact details). In such situations, it is unlawful to burden him with the payment of interest.

In cases where the basis on which the property was acquired subsequently loses its significance, conditional obligations also arise. Can interest always be charged here?

For example, the privatization transaction based on a competition was declared invalid by the arbitration court. Because of this, the organization filed a claim against the City Property Fund for the return of the amount paid for the municipal enterprise acquired at auction, as well as payment of interest for the period from the date of actual transfer of the cost of the object. I believe that the grounds for applying Art. 395 of the Civil Code, because within the meaning of the law, the collection of interest is always associated with the illegality of possession of a sum of money. In the above example, the Property Fund received money as a result of a purchase and sale agreement based on the results of a competition, and its retention should be considered unlawful only from the date of the decision to invalidate the transaction (see paragraph 2 of Article 1107).

Statements that the obligations in question arise regardless of the guilt of the obligated person are not entirely correct, since there should be no guilt at all. If an organization has committed any actions, as a result of or depending on which it has unjustifiably received a certain amount, we can only talk about causing harm (Articles 1064 - 1083 of the Civil Code). Consequently, in order to recognize the receipt of property as unfounded, it is necessary to find out the presence of guilt, and if there is one, first of all, the norms of the law on tortious obligations (from causing harm to another) are applied. This conclusion is based on Art. 1103 of the Civil Code, which provides that the provisions on the rules of conduct apply to claims for compensation for damage to the extent that “otherwise not established by this Code.”

In case of application of the rules of Art. 395 of the Civil Code usually mention liability for violation of monetary obligations. What should be understood by them? A client of Samara bank "C" submitted a payment order to the bank to transfer a sum of money from the account to his business partner as an advance payment for goods. Bank "C" put the bank's stamp on the payment order and issued a statement confirming the execution of the transaction. However, in reality it turned out that the amount of money was never transferred. The client appealed to the arbitration court with a demand to collect a penalty from the bank for each day of delay in the amount of money and interest on the basis of Art. 395 of the Code. When considering the case in the arbitration court, Bank "S" indicated that in this case only a penalty was subject to collection, and Art. 395 of the Civil Code there is no reason, since their relationship with the client in this case represented a relationship under an agreement for maintaining a bank account and was a relationship for the provision of services, but not monetary obligations. Probably, for claims for the recovery of interest, it would be more correct to abandon the concept of “monetary obligation” altogether. After all, there is no legislative definition, and widespread use in practice can only be misleading. When this phrase is used, they usually mean an obligation where the debtor must pay money to the creditor (make a payment). But even if we rely only on paragraph 1 of Art. 395 of the Civil Code, it is clear that the law does not limit the grounds for collection to cases of non-fulfillment of a monetary debt. These can be either conditional obligations or others, when by virtue of title ownership (storage, deposit, transportation, assignment, etc.) the debtor retains the creditor’s money in his favor. Therefore, in the above example and other cases, the obligation to pay interest arises from the fact of possessing money for any, and not just the so-called “monetary” obligation.

The fact of withholding other property, even if it has a monetary value, does not provide grounds for applying the norm of Art. 395 Civil Code. Obviously, the legislator proceeded from the need to burden the obligation to pay interest only on those who own property in monetary form, which allows it to be easily transferred to profitable areas and make a profit.

The amount of funds on which interest is accrued is the amount of funds to be received (detained, received unjustifiably, etc.). In any case, it must be defined and highlighted in the court decision, since it is the basic value for calculating interest.

If the creditor is paid an amount insufficient to fulfill the monetary obligation, then in accordance with Art. 319 of the Civil Code, the received funds first of all repay the creditor’s costs for obtaining execution, then interest, and the remainder - the principal amount of the debt. It should be considered that the percentages specified in this article should be identified with the percentages established by Art. 395 Civil Code. Therefore, it can be argued that the creditor has the right to independently calculate incoming amounts and determine their category (in the manner established by Article 319). What does this lead to in practice? If, for example, the debt amounted to 1 million rubles on January 1, 1995 and the interest on it by June 1, 1995 amounted to 500 thousand rubles, then if 500 thousand rubles are paid on this date, the creditor has the right to consider the debt unrepaid in full. Therefore, from June 1, he will continue to accrue interest on the entire million. A debtor who is unable to pay the entire amount at once may give the creditor the opportunity to turn into a rentier. The practical implementation of the rules under consideration makes us think about making certain adjustments. Of course, our economy needs strict and unambiguous rules for doing business, but situations are different.

The problem is primarily due to the fact that interest does not accrue on interest, and there are extremely few restrictions on collecting interest on the principal. Therefore, as a “de lege ferendae”, it is necessary to legislatively restrict the creditor’s right to independently determine the category of incoming money (principal debt or interest): for example, by establishing a rule that outside the year of collection of interest, subsequent amounts are first counted as payment of the debt.

If the debtor, when listing the debt, indicated the amount of money as

“repayment of debt”, and the creditor did not challenge such a characteristic (wording), it should be considered that in this case there was an agreement on a special accounting procedure.

Cash in foreign currency can also be used, for example, if it is mistakenly credited to another account. I believe that in this case, interest is subject to recovery, since this type of property in the accounting records of Russian residents is always simultaneously taken into account as a certain amount of money in rubles.

If interest is claimed for the delay of securities, even with an unconditional monetary value, they are not subject to recovery. This conclusion also applies to option transactions (giving the right to subsequently sell securities and receive money): until the occurrence of appropriate circumstances (deadline, statement, etc.), the subject of the relationship between the parties is not money, but the securities themselves.

The amount of interest is determined by the discount rate of bank interest at the place of residence of the creditor, and if the creditor is a legal entity - at its location on the day of fulfillment of the monetary obligation or its corresponding part (clause 1 of Article 395 of the Civil Code). However, this rule requires clarification. In reality, there are only the following discount rates that have a regulatory definition:

LIBOR rate (London interbank market LIBOR rates on loans in US dollars and pounds sterling);
the discount rate of the Central Bank of Russia, periodically changed by it and being uniform throughout the Russian Federation when issuing commercial loans from the Central Bank;
special rates of the Central Bank of Russia for certain types of lending (for example, a 10 percent rate for lending to the Ministry of Finance, etc.);
rates MIBID, MIBOR and MIACR. These are estimated rates for ruble loans based on the weighted average of interbank market rates: the first - announced for attracting loans, the second - announced for their provision, the third - actual for provision;
the rate of this particular commercial bank, which is set by the bank individually for each borrower based on financial capabilities and the credit policy pursued in a given period.

Therefore, the rate that the Code speaks of does not actually exist. More precisely, it is extremely difficult to install. The following two solutions are most likely here. Firstly, the required rate can be considered the discount rate of the Central Bank of Russia. Its use would eliminate all possible disputes and lead to uniformity in calculations. This is what law enforcement practice is now focusing on. Secondly, this rate can be recognized as the average monthly rate on loans issued by the bank that services the lender. This solution has its advantages, since fluctuations in rates across regions are significant (the difference reaches 50 percent per annum), and it would be correct to proceed from the conditions in which the affected organization is located. However, the use of this rate requires unambiguous and indisputable forms of proof of the size of the rate and may encounter objections from the debtor. Therefore, the first option seems preferable.

In any case, it is advisable to present the position of the Supreme Arbitration Court of the Russian Federation on the issue under consideration.

In accordance with the Regulations on the procedure for calculating interest and reflecting them in accounting accounts in banking institutions and accepted banking practice, interest on loans is calculated for each day based on 360 days a year, or 30 days a month. Therefore, the calculation of specific interest may be based on determining its amount payable on one day. If, for example, the discount rate of the Central Bank of the Russian Federation is equal to 180 percent per annum, then the interest per day will be 0.5. In this case, it will be enough to set the number of days the money is delayed.

If during the period of holding the money the discount rate changed, it would be reasonable, in my opinion, to recalculate the interest accordingly. But the law established that, as a general rule, the calculated rate is “on the day of fulfillment of the monetary obligation”; in addition, “the court may satisfy the creditor’s claim based on the discount rate of bank interest on the day the claim was filed or on the day the decision was made.” The parties cannot independently change the rate. They can only reduce or increase the interest rate.

Isn't this position of the legislator too harsh? According to the text of the law, for calculation the court may take not the rate (rates) in force during the period of violation, but one of the three rates indicated above. But the offense itself can be removed from any of the moments named by law for a long period and by the time, say, a decision is made, the rate can drop sharply (this was the case, for example, in the fall of 1993). As a result, the creditor will receive less of a certain amount, just as he may receive an excess if rates increase from the period of the offense to the time the decision is made. Thus, in the same 1993, fluctuations in the discount rate of the Central Bank of Russia reached 85 percent per annum.

Clause 2 of Art. 395 of the Civil Code provides that “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 paragraph 1 of this article, he has the right to demand compensation from the debtor for losses in the amount exceeding this amount.” Consequently, the amount of interest is first calculated, and only then is it compared with the amount of damages for the same offense. If losses (for example, forced expenses) arose between the same parties, but on a different basis, no offset is made and such losses are subject to compensation in full.

Another conclusion from the above text of the law (clause 2 of Article 395 of the Civil Code) is associated with the theoretical construction of liability for violation of obligations and is that interest is imperatively not included in the damages, they are not part of them, even if it is a peculiar one. This conclusion should be used in all cases where an interested person analyzes an offense and expects to apply certain means of influence to the offender. Collection of interest is an independent measure of civil liability (in addition to penalties, compensation for losses, etc.).

Implying possible objections, it should be pointed out that interest is payable not in connection with the creditor’s losses - there may not be any, but “for the use of someone else’s money.” This is not only compensation for the creditor, but also punishment for the debtor.

Interest does not fall under the concept of losses, the definition of which is given in Art. 15 GK. Unreceived income is closest to interest, but the legislator linked the possibility of claiming it primarily with circumstances on the side of the creditor, and not the debtor. Indeed, if interest is collected “for the use of someone else’s money,” then lost profits (“lost income”) are “income that this person would have received under normal conditions of civil turnover.” Thus, the recovery of both interest and damages is based on the debtor’s violation, but the conditions of calculation and proof lie on different levels.

In accordance with Art. 394 of the Civil Code, as a general rule, losses are compensated in the part not covered by the penalty. Since interest is not a loss or penalty, this rule does not apply to it. Consequently, if a penalty is established, then interest should be collected without offset against it.

Current legislation does not provide for the possibility of reducing or increasing the amount of interest based on the property status of the defendant, the nature of the violation, the form of guilt and other circumstances. The limitation of the amount of liability for obligations in the Code is devoted to Art. 400, but such a limitation applies only to losses and must be established directly in the law or agreement of the parties (if the creditor is not a citizen), and not in a by-law.

However, the creditor’s guilt (Article 404 of the Civil Code) may serve as a basis for reducing the amount of the debtor’s liability, since the law speaks specifically about “liability” in general, and not about its individual measures (compensation for losses or collection of penalties).

Is the debtor's fault a prerequisite for collecting interest? As a general rule (clause 1 of Article 401 of the Civil Code), guilt is necessary to bring to responsibility, except in cases where the law or contract provides otherwise. It should be noted that this article is unsuccessfully titled “Grounds of Liability...”, although previously it was customary to call guilt only a condition, and the basis was the offense itself. In the case where the obligation did not arise during the implementation of entrepreneurial activity, and the contract did not provide otherwise, the debtor is liable only if there is fault.

If the withholding of money is associated with non-fulfillment or improper fulfillment of an obligation by third parties to whom the debtor was entrusted with execution, the debtor is also obliged to pay interest (Article 403). But the funds must remain with the debtor - otherwise, only the question of compensation for losses and collection of a penalty can be raised.

When there are several debtors, their obligation to pay interest in a business obligation is joint and several. In other obligations, unless there is a special clause in the law or in the contract, these are shared obligations.

For the use of someone else's funds as a result of their unlawful retention, evasion of their return, other delay in their payment, or unjust receipt or savings at the expense of another person, interest on the amount of these funds is subject to payment.

To apply the provisions of Art. 395 of the Civil Code of the Russian Federation in practice it is necessary to determine:

the moment when interest begins to accrue;
end date for interest accrual;
interest rate;
calculation procedure.

The moment when interest begins to accrue for the use of other people's funds

According to the general rule for calculating deadlines, the accrual of interest for the use of other people's funds begins the next day after the calendar date when the obligation should have been fulfilled (Article 191 of the Civil Code of the Russian Federation).

Let's look at the example of a promissory note. The Borrower took a sum of money from the Lender and undertook to return it on March 31, but did not fulfill his obligation. The receipt does not contain conditions on the accrual of penalties for violating the loan repayment deadline. Consequently, the Lender has the right to demand interest from the Borrower for the use of other people's funds, starting from April 1, that is, the next day after the calendar date when the debtor was supposed to repay the debt.

The end date for accruing interest for the use of someone else's money.

According to paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation of October 8, 1998 N 13/14 interest is accrued until the actual fulfillment of the monetary obligation, determined on the basis of the conditions on the procedure for payments, the form of settlements and the provisions of Article 316 of the Civil Code of the Russian Federation on the place of fulfillment of the monetary obligation, unless otherwise established by law or agreement of the parties.

Let's look at our example with a promissory note. The Borrower repaid the debt to the Lender on April 30. Consequently, the Lender has the right to claim interest accrued during the period from April 1 to April 30.

The amount of interest for using someone else's money.

According to paragraph 1 of Article 395 of the Civil Code of the Russian Federation, the amount of interest is determined by the bank interest rate existing at the place of residence of the creditor, and if the creditor is a legal entity, at its location, the discount rate of bank interest on the day of fulfillment of the monetary obligation or its corresponding part.

The Civil Code of the Russian Federation does not contain a definition of the concept of “bank interest rate”. To resolve numerous disputes, paragraph 51 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation” establishes that interest must be paid in the size of the uniform discount rate of the Central Bank of the Russian Federation for credit resources provided to commercial banks (refinancing rate).

It follows that the amount of interest for using someone else's money is equal to the refinancing rate, valid at the time of fulfillment of the obligation. Information on the size of the refinancing rate, as well as the history of its changes, can be found on the website of the Central Bank of the Russian Federation.

When a creditor files a claim in court to collect a debt, interest may be accrued based on the refinancing rate on the day the claim was filed or on the day the decision was made.

The best option for the lender would be to calculate interest for the use of someone else's money based on the refinancing rate at the time the claim is filed in court.

The procedure for calculating interest for the use of other people's funds.

According to the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 N 13/14, when calculating the annual interest payable at the refinancing rate of the Central Bank of the Russian Federation, the number of days in a year (month) is taken equal to 360 and 30 days, respectively.

Taking into account this provision, the formula for calculating interest for the use of other people's funds will be as follows:

SP = (SRCBRF x SD x CD) / 36,000, Where

JV – WITH umma P percentages for the use of other people's funds;

SRCBRF – WITH tavka R efinancing C central B anka R Russian F federations;

SD – WITH umma D olga;

KD – TO quantity D it, from the moment the debt arose;

36 000 - obtained by multiplying 360 days a year by the indicator necessary to calculate the share per one percent.

How to calculate interest for using someone else's money in 2017-2018?

If an agreement on the amount of interest for the use of other people's funds in 2017-2018 is documented, the debt must be calculated using the percentage specified in the document drawn up. Otherwise, you should use the refinancing rate set by the Central Bank.

the day on which accrual begins (following the last day on which the obligation to transfer funds should have been fulfilled);
the day on which accrual ends (until the actual and full fulfillment of the obligation);
interest rate;
the procedure for conducting settlements between the parties is voluntary or judicial.

IMPORTANT!In case of a long delay, during which the bank rate has changed, it is necessary to use its value at the time of payment of the debt. In addition, the number of days in a year (for such calculations) is equal to 365 (previously existing provisions of paragraph 2 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 13, the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 No. 14, according to which it was necessary to proceed from 360 days a year , not applied since April 2016).

There is a formula for determining the interest charged for the use of other people's funds:

Debt × interest rate / 365 × total number of days overdue.

How is interest collected through court?

To charge interest for the use of someone else's money, you can go to court at the place of residence or location of the defendant. Collection of interest for the use of someone else's money requires that a claim be drawn up, in which the following should be indicated:

grounds for the demand for recovery of funds;
the period of their illegal retention;
at what rate the calculation was made (according to the agreement, at the Central Bank refinancing rate, etc.);
the calculation itself (you cannot indicate just one amount).

If you want interest to be accrued for the use of someone else’s money during the time the case is being considered by the court, you need to recalculate it before each meeting. The recalculation must be submitted to the judge along with a motion to change the total amount of the claim at the time of the hearing.

After the court satisfies the request, an appropriate order is issued. What to do next? How can the plaintiff now get his money? The defendant is obliged to pay interest for the use of someone else's money only after the court decision comes into force. If the other party does not take any action, the court order is sent to the bailiff service, where enforcement measures will be taken.

In what In cases where the calculation and collection of interest is not possible?

Firstly, the collection of interest for the use of someone else's money is not carried out when the indicated amount under the contract was not intended as a means of payment. In particular, such situations include:

the duty of the carrier who delivers banknotes;
non-delivery of money to the bank under a cash service agreement;
untimely or insufficient transfer of funds by the bank under the responsible management agreement, etc.

Secondly, interest cannot be collected for the use of property, securities, etc., even if their nominal value is known.

Legislation in this matter not only protects the interests of the creditor, but also punishes the debtor. In this case, it does not matter whether one of the parties actually suffered losses, just as it does not matter whether the other party received profit in the form of interest for the use of someone else’s money.

Thus, if a party to a contract unlawfully uses someone else’s money, it makes sense to go to court with a claim for their recovery in accordance with Art. 395 of the Civil Code of the Russian Federation. During the process, a settlement agreement can be concluded (if mutually desired). If the defendant does not want to act in this way, the court will decide in favor of the plaintiff, who will receive the right to forcibly collect funds on the basis of a writ of execution.