Prohibition on abuse of the right of the Civil Code of the Russian Federation. Abuse of law - judicial practice. Violation of procedural law

Prohibition on abuse of the right of the Civil Code of the Russian Federation. Abuse of law - judicial practice. Violation of procedural law
09.12.2019

In connection with the issues arising from the courts in cases of abuse of office and abuse of office, the Plenum of the Supreme Court Russian Federation guided by Article 126 of the Constitution of the Russian Federation,

decides:

1. To draw the attention of courts to the focus of criminal responsibility for crimes against interests public service to ensure the protection of citizens from corruption and other socially dangerous acts committed by officials in the service. Persons abusing their official powers or exceeding their official powers encroach on the activities of state bodies, local self-government bodies, state and municipal institutions, state corporations, the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation regulated by regulatory legal acts, as a result of which the rights and legitimate interests of citizens or organizations or the interests of society and the state protected by law are violated.

2. When considering criminal cases of abuse of office (Article 285 of the Criminal Code of the Russian Federation) and abuse of office (Article 286 of the Criminal Code of the Russian Federation), it is necessary to establish whether the defendant is the subject of these crimes - an official. In this case, it should be assumed that in accordance with paragraph 1 of the notes to Article 285 of the Criminal Code of the Russian Federation, officials are recognized as persons who permanently, temporarily or by special authority perform the functions of a representative of the government or perform organizational and administrative, administrative and economic functions in state bodies, local authorities. self-government, state and municipal institutions, state corporations, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation.

3. Persons vested with the rights and obligations to exercise the functions of legislative, executive or judicial authorities, as well as, based on the content of the note to Article 318 of the Criminal Code of the Russian Federation, other persons of law enforcement or regulatory bodies vested in the statutory the order of administrative powers in relation to persons who are not in official dependence on them, or the right to make decisions that are binding on citizens, organizations, institutions, regardless of their departmental affiliation and forms of ownership.

4. Organizational and administrative functions should be understood as the powers of an official, which are associated with the management of the labor collective of a state body, state or municipal institution (his structural unit) or individual employees in their service subordination, with the formation of the staff and determination labor functions employees, with the organization of the order of service, the application of incentives or rewards, the imposition of disciplinary sanctions, etc.

Organizational and administrative functions include the powers of persons to make decisions that have legal significance and entail certain legal consequences (for example, for a medical worker to issue a certificate of temporary disability, an employee of an institution of medical and social examination of the fact that a citizen has a disability, taking exams and giving marks by a member state examination (certification) commission).

5. As administrative and economic functions should be considered the powers of an official to manage and dispose of property and (or) monetary funds on the balance sheet and (or) bank accounts of organizations, institutions, military units and divisions, as well as to perform other actions (for example , for making decisions on the accrual wages, bonuses, monitoring the movement of material assets, determining the order of their storage, accounting and control over their spending).

6. Fulfillment of the functions of an official by special authority means that a person exercises the functions of a representative of authority, performs organizational and administrative or administrative-economic functions assigned to him by law, other regulatory legal act, order or order of a higher official or an authorized body or official (for example, the function of a juror). The functions of an official by special authority can be carried out for a certain time or once, and can also be combined with the main work.

In the temporary performance of the functions of an official or in the performance of them by special authority, a person may be recognized as an official only during the period of performance of the functions assigned to him.

If a person appointed to a position in violation of the requirements or restrictions established by law or other regulatory legal acts, to a candidate for this position (for example, in the absence of a diploma of higher professional education, the necessary work experience, in the presence of a criminal record, etc.), out of selfish or other personal interest, used his official powers against the interests of the service, or committed actions that clearly go beyond his powers, which entailed a significant violation of rights and legitimate interests citizens or organizations or the interests of society or the state protected by law, then such actions should be qualified accordingly as abuse of official powers or as exceeding official powers.

7. In the Armed Forces of the Russian Federation, other troops, military (special) formations and bodies performing functions to ensure the defense and security of the state, officials who permanently, temporarily or by special authority perform organizational and administrative and (or) administrative and economic functions , may be chiefs by official position and (or) military rank.

Commanders by official position are persons to whom military personnel are subordinate in service. These should include:

persons holding relevant military positions according to the state (for example, the commander of a squad, company, head of the regiment's clothing service);

persons temporarily performing duties in the relevant military position, as well as temporarily performing the functions of an official by special authority.

Civilian personnel are supervisors for subordinate military personnel in accordance with their regular position.

Chiefs in military rank are defined in Article 36 of the Charter of the Internal Service of the Armed Forces of the Russian Federation (in particular, sergeants and foremen are chiefs in terms of military rank for soldiers and sailors of only one military unit with them).

8. The subject of the crimes provided for by part 1 of Article 285 of the Criminal Code of the Russian Federation and part 1 of Article 286 of the Criminal Code of the Russian Federation is a person performing the functions of a representative of the authorities, performing organizational and administrative and (and) administrative and economic functions in government agency, a local government body, a state and municipal institution, a state corporation, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation, and at the same time does not hold a state position of the Russian Federation or a state position of subjects of the Russian Federation in these bodies.

9. When deciding on the subject of a crime provided for in Part 2 of Article 285 of the Criminal Code of the Russian Federation or Part 2 of Article 286 of the Criminal Code of the Russian Federation, the courts should proceed from paragraphs 2 and 3 of the Notes to Article 285 of the Criminal Code of the Russian Federation, according to which persons holding public positions of the Russian Federation, means persons holding public offices established by the Constitution of the Russian Federation, federal constitutional laws and federal laws for the direct execution of the powers of federal state bodies (paragraph 2 of the notes), and persons holding public offices of subjects of the Russian Federation are persons holding offices established by constitutions or by the charters of the constituent entities of the Russian Federation for the direct execution of the powers of state bodies of the constituent entities of the Russian Federation (clause 3 of the notes). The consolidated list of government positions in the Russian Federation was approved by Decree of the President of the Russian Federation of January 11, 1995 N 32 (as amended on December 1, 2008).

10. Along with a person holding a public office of the Russian Federation or a public office of a constituent entity of the Russian Federation, the subject of responsibility under part 2 of Article 285 of the Criminal Code of the Russian Federation and part 2 of Article 286 of the Criminal Code of the Russian Federation is the head of the local government, which should be understood only as the head of the municipal formation - higher an official of the municipality, endowed by the charter of the municipality with its own powers to resolve issues of local importance (Article 36 of the Federal Law of October 6, 2003 N 131-FZ "On general principles organizations of local self-government in the Russian Federation ").

11. Courts should distinguish between criminal acts officials from the acts of other persons performing managerial functions in a commercial or other organization, whose responsibility for abuse of their powers is established by Article 201 of the Criminal Code of the Russian Federation.

The subjects of this crime are persons performing managerial functions in a commercial or other organization, the main purpose of whose activities is to make a profit, as well as in a non-profit organization that is not a state body, local self-government body, state or municipal institution, a public corporation.

Persons performing managerial functions in a commercial or other organization include persons performing the functions of a sole proprietor. executive body, a member of the board of directors or other collegial executive body, as well as persons who permanently, temporarily or by special authority perform organizational and administrative or administrative functions in these organizations (for example, a director, general director, member of the board of a joint-stock company, chairman of an industrial or consumer cooperative, head of a public association, religious organization).

In cases where these persons use their powers contrary to the legitimate interests of a commercial or other organization and in order to derive benefits and advantages for themselves or others, or harm others, they are subject to liability under Article 201 of the Criminal Code of the Russian Federation, if this act entailed the infliction of significant harm to the rights and legitimate interests of citizens or organizations or the interests of society and the state protected by law.

12. If, as a result of abuse of authority by a person performing managerial functions in a commercial or other organization, harm is caused to the interests of an exclusively commercial or other organization that is not a state or municipal enterprise, criminal prosecution is carried out at the request of the head of this organization or with his consent (Article 23 of the Code of Criminal Procedure of the Russian Federation). In the event of harm to the interests of other organizations (for example, a non-profit organization, a state or municipal enterprise), as well as the interests of citizens, society or the state, criminal prosecution for abuse of power in a commercial or other organization is carried out on a general basis (paragraph 3 of the Notes to Article 201 of the Criminal Code RF).

When, as a result of abuse of authority by the head of a commercial or other organization, harm is inflicted exclusively on this organization, the criminal prosecution of the head is carried out at the request or with the consent of the management body of the organization, whose competence includes the election or appointment of the head, as well as with the consent of a member of the management body of the organization or persons who have the right to make decisions that determine the activities of a legal entity.

13. In cases where an act containing signs of abuse of office (Article 285 of the Criminal Code of the Russian Federation) or abuse of office (Article 286 of the Criminal Code of the Russian Federation) was committed by an official to eliminate a danger that directly threatens the individual, the interests of society or the state protected by law, and this the danger could not be eliminated by other means, then such an act cannot be recognized as criminal, provided that the limits of extreme necessity were not exceeded (Article 39 of the Criminal Code of the Russian Federation).

14. Acts of an official connected with the use of official powers that have caused damage to interests protected by criminal law cannot be recognized as criminal if they were committed in pursuance of a binding order or order (Article 42 of the Criminal Code of the Russian Federation).

An official who has committed a deliberate crime under Article 285 of the Criminal Code of the Russian Federation or Article 286 of the Criminal Code of the Russian Federation, in pursuance of an illegal order or order known to him, bears criminal liability on a universal basis. In this case, the actions of a superior official who issued such an order or order should be considered, if there are grounds for that, as incitement to commit a crime or the organization of this crime and qualified under the relevant article of the Special Part of the Criminal Code of the Russian Federation with reference to part 3 or part 4 of Article 33 Of the Criminal Code of the Russian Federation.

An official who issued a deliberately illegal order or order to a subordinate who did not realize the illegality of such an order or order and executed it, shall be liable as the perpetrator of the crime.

15. Under the use by an official of his official powers contrary to the interests of the service (Article 285 of the Criminal Code of the Russian Federation), the courts should understand the commission of such acts, which, although they were directly related to the exercise by the official of his rights and obligations, were not caused by official necessity and objectively contradicted as general the tasks and requirements for the state apparatus and the apparatus of local self-government bodies, as well as those goals and objectives for the achievement of which the official was endowed with appropriate official powers. In particular, the actions of an official who, out of selfish or other personal interest, performs actions within the scope of his official powers in the absence of mandatory conditions or grounds for their commission (for example, issuing a driver's license to persons who have not passed compulsory exam; hiring persons who do not actually fulfill their labor duties; the release by the commanders (chiefs) of subordinates from the execution of the duties assigned to them with a referral to work in commercial organizations or the arrangement of the personal household of an official).

Responsibility under Article 285 of the Criminal Code of the Russian Federation also occurs for intentional failure by an official to fulfill his duties in the event that such inaction was committed out of selfish or other personal interest, objectively contradicted the goals and objectives for the achievement of which the official was endowed with the appropriate official powers, and entailed a significant violation of the rights and legitimate interests of citizens or organizations or the interests of society and the state protected by law.

16. When deciding on the presence in the actions (inaction) of the defendant of corpus delicti provided for in Article 285 of the Criminal Code of the Russian Federation, under the signs of the subjective side of this crime, in addition to intent, it should be understood:

selfish interest - the desire of an official, by committing illegal actions, to obtain for himself or other persons a property benefit that is not related to illegal gratuitous use of property in his own favor or the benefit of other persons (for example, illegal receipt of benefits, a loan, exemption from any property costs , return of property, repayment of debt, payment for services, payment of taxes, etc.);

other personal interest - the desire of an official to benefit from a non-property nature, due to such motives as careerism, nepotism, a desire to embellish the actual situation, receive a mutual service, enlist support in solving any issue, hide his incompetence, etc.

Protectionism, which means illegal assistance in employment, promotion, promotion of a subordinate, as well as other patronage in the service, committed out of selfish or other personal interest, should be considered as the use by an official of his official powers against the interests of the service.

17. In contrast to the theft of someone else's property using his official position, abuse of office out of selfish interest is formed by such acts of an official that are either not associated with the seizure of someone else's property (for example, obtaining property benefits from the use of property for other purposes), or are associated with temporary and (or) the onerous seizure of property.

If the use by an official of his official powers resulted in the theft of someone else's property, when it was actually seized, the deed is fully covered by part 3 of Article 159 of the Criminal Code of the Russian Federation or part 3 of Article 160 of the Criminal Code of the Russian Federation and does not require additional qualifications under Article 285 of the Criminal Code of the Russian Federation.

In cases where an official, using his official powers, along with the theft of someone else's property, has committed other illegal actions related to abuse of official powers out of selfish or other personal interest, what he has done should be classified according to the totality of these crimes.

Likewise, based on the provisions of Article 17 of the Criminal Code of the Russian Federation, the issue related to the legal assessment of the actions of an official who has committed an official forgery should be resolved. In cases where such a person, in connection with the performance of his official duties, has made deliberately false information or corrections in official documents that distort their actual content, the deed must be qualified under Article 292 of the Criminal Code of the Russian Federation. If, along with the commission of actions entailing criminal liability under Article 285 of the Criminal Code of the Russian Federation, they commit an official forgery, then the deed is subject to qualification in conjunction with Article 292 of the Criminal Code of the Russian Federation.

18. In cases of abuse of power and abuse of power, the courts must, along with other circumstances of the case, find out and indicate in the judgment exactly which rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law have been violated and whether the inflicted harm to these rights and interests in causal connection with the violation of his official powers by the official.

A significant violation of the rights of citizens or organizations as a result of abuse of official powers or abuse of official powers should be understood as a violation of the rights and freedoms of individuals and legal entities guaranteed by generally recognized principles and norms. international law, The Constitution of the Russian Federation (for example, the right to respect for the honor and dignity of the individual, personal and family life of citizens, the right to inviolability of the home and privacy of correspondence, telephone conversations, postal, telegraph and other messages, as well as the right to judicial protection and access to justice, including the rights to effective remedy legal protection in a state body and compensation for damage caused by a crime, etc.). When assessing the materiality of harm, it is necessary to take into account the degree of negative impact of the unlawful act on the normal operation of the organization, the nature and amount of material damage suffered by it, the number of injured citizens, the severity of physical, moral or property damage caused to them, etc.

Violation of the legitimate interests of citizens or organizations as a result of abuse of official powers or abuse of official powers should be understood, in particular, the creation of obstacles in the satisfaction of citizens or organizations of their needs that do not contradict the norms of law and public morality (for example, the creation by an official of obstacles limiting the in cases stipulated by law, at its own discretion, the organization for cooperation).

19. In contrast to the liability provided for in Article 285 of the Criminal Code of the Russian Federation for the commission of actions (inaction) within its competence, contrary to the interests of the service, responsibility for exceeding official powers (Article 286 of the Criminal Code of the Russian Federation) occurs in the event that an official commits active actions that clearly go beyond the limits of his powers. that entailed a significant violation of the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law, if at the same time the official was aware that he was acting outside the powers assigned to him.

Exceeding official powers can be expressed, for example, in the commission by an official in the performance of official duties of actions that:

refer to the powers of another official (superior or equal in status);

can be committed only in the presence of special circumstances specified in a law or by-law (for example, the use of weapons against a minor, if his actions did not create real danger for the lives of others);

are committed by an official alone, however, they can be performed only collegially or in accordance with the procedure established by law, in agreement with another official or body;

no one and under no circumstances has the right to commit.

Based on the disposition of Article 286 of the Criminal Code of the Russian Federation, the motive of the crime does not matter for qualifying the deed as exceeding official powers.

20. When qualifying the actions of a person under clause "b" of Part 3 of Article 286 of the Criminal Code of the Russian Federation, courts under the use of weapons or special means should understand intentional actions associated with the use by a person of the damaging properties of these objects, or their use for their intended purpose.

Delimiting the abuse of office committed with the use of weapons or special means from the lawful actions of officials, the courts should take into account that the grounds, conditions and limits for the use of weapons or special means are defined in the relevant regulatory legal acts of the Russian Federation (for example, in the Federal Law of 3 April 1995 N 40-FZ "On the Federal Security Service", Federal Law of February 6, 1997 N 27-FZ "On the Internal Troops of the Ministry of Internal Affairs of the Russian Federation", Federal Law of May 27, 1996 N 57-FZ "On state protection", the Law of the Russian Federation of April 18, 1991 N 1026-1 "On the police").

Special means include rubber sticks, handcuffs, tear gas, water cannons, armored vehicles, obstacle destruction means, service dogs and other means in service with internal affairs bodies, internal troops, federal bodies state protection, bodies federal service security, bodies of the penal system, etc.

21. Under grave consequences as a qualifying sign of a crime, provided for in part 3 of Article 285 of the Criminal Code of the Russian Federation and clause "in" part 3 of Article 286 of the Criminal Code of the Russian Federation, one should understand the consequences of a crime in the form of major accidents and a prolonged stop of transport or production process, other disruption of the activities of the organization , causing significant material damage, causing death by negligence, suicide or attempted suicide of the victim, etc.

22. When considering criminal cases on crimes provided for in Article 285 of the Criminal Code of the Russian Federation or Article 286 of the Criminal Code of the Russian Federation, the courts must find out what regulatory legal acts, as well as other documents, establish the rights and obligations of the accused official, with their inclusion in the sentence and indicate the abuse of which of these rights and obligations or the excess of which of them is imputed to him, with reference to specific norms(article, part, paragraph).

In the absence of the indicated data in the indictment or indictment, which cannot be replenished in the court session, the criminal case must be returned to the prosecutor in accordance with Article 237 of the Code of Criminal Procedure of the Russian Federation in order to remove obstacles to its consideration by the court.

23. The courts should keep in mind that in accordance with paragraph "a" of part 1 of Article 1041 of the Criminal Code of the Russian Federation, money, valuables and other property received as a result of a crime under Article 285 of the Criminal Code of the Russian Federation, and any proceeds from this property are subject to confiscation, for the exception of property and income from it, subject to return to the legal owner.

24. When establishing the circumstances that contributed to the commission of crimes provided for in Articles 285 and 286 of the Criminal Code of the Russian Federation, violations of the rights and freedoms of citizens, as well as other violations of the law committed during the inquiry, preliminary investigation or when considering a criminal case by a lower court, recommend to the courts in accordance with Part 4 of Article 29 of the Code of Criminal Procedure of the Russian Federation to issue particular rulings or decisions, drawing the attention of the relevant organizations and officials to these circumstances and facts of violations of the law, requiring the adoption of the necessary measures to eliminate them.

25. In connection with the adoption of this resolution, the resolution of the Plenum of the Supreme Court of the USSR of March 30, 1990 No. 4 "On judicial practice in cases of abuse of power or official position, abuse of power or official powers, negligence and official forgery ".

Chairman of the Supreme Court of the Russian Federation

V. Lebedev

Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation

(Unfair omission, actions aimed at causing harm (chicane), restriction of competition, abuse of procedural law, liability)


Along with the concept of illegal behavior, there is the concept of unfair behavior (Article 1 of the Civil Code of the Russian Federation). Moreover, unfair behavior is equated by the legislator with abuse of the right (Article 10 of the Civil Code of the Russian Federation). What is unfair behavior, abuse of law and how these actions differ from illegal behavior, the legislator did not explain. But it can be noted that the very phrase "unfair behavior" means that the person is not acting in good conscience, and does it deliberately

The Constitutional Court indicates that the prohibition on the abuse of rights in any form and the legal consequences of abuse are aimed at implementing the principle enshrined in Article 17 of the Constitution of the Russian Federation that the exercise of human and civil rights and freedoms should not violate the rights and freedoms of others (Definition The Constitutional Court RF dated July 17, 2014 No. 1808-O).

Despite the fact that the law distinguishes between illegal and unfair behavior, the highest judicial authority says that abuse of the right occurs when the subject acts contrary to the norm that gives him the appropriate right, and also does not correlate the behavior with the interests of society and the state, does not fulfill the corresponding law legal obligation (Determination of the Supreme Court of the Russian Federation No. 32-KG14-17 dated 03.02.2015).

Indeed, dishonest behavior is often both illegal. An example is feigned transactions that are made to achieve some selfish result in the absence of a direct need to complete them (Article 170 of the Civil Code of the Russian Federation).

Forms of abuse of rights

The forms of abuse of rights can be completely different:

1. The use of the right for the sole purpose of causing harm to another person ("chicane");

2. Actions bypassing the law with an unlawful purpose;

3. Restriction of competition and abuse of dominant market position;

4. Unfair omission;

5. Knowingly bad faith civil rights... For example:

  • disposal of a right with an illegal purpose;
  • disposal of the right by illegal means;
  • actions as a result of which the other party cannot exercise its rights.

In general, any form of abuse is the use of rights belonging to a person in unauthorized ways, contrary to the purpose of the law, or for an unauthorized purpose, as a result of which harm is caused to other persons. This is the position that the courts adhere to when they state the fact of abuse.

Chicane in its pure form is very rare. Usually this form of abuse is combined with others, since the consequence of the abuse of the right by one side of the relationship becomes harm to the other party. Thus, the conclusion of a transaction on especially favorable terms for a party inevitably entails unfavorable consequences for another person (Determination of the Arbitration Court of the Republic of Bashkortostan in the case of 2014). Or another case, during which the court found that a rate of over 500 percent per annum for the use of the loan amount could lead to unjust enrichment of the creditor and violate the principles of reasonableness and good faith (Determination of the Supreme Court of the Russian Federation in the case of 2016).

Distinguishing between circumvention of the law and legal behavior is rather difficult. Everyone knows the rule: what is not prohibited by law is allowed. Therefore, the choice of a specific method for realizing the set legal goal does not give a reason to talk about circumvention of the law.

The most illustrative example is the collection by suppliers (performers, contractors) of unjust enrichment (in other words, payment for the delivered goods, work performed) in the absence of a state contract, when the need to conclude it is provided for by the Law on the Contract System (Definition of the Supreme Court of the Russian Federation in the case of 2015).

The Federal Law "On Protection of Competition" of July 26, 2006 N 135-FZ defines specific elements of abuse (Article 10). Among them:

  • imposing on the counterparty the terms of the contract that are unfavorable for him or not related to the subject of the contract;
  • inclusion of discriminatory terms in the contract.

Moreover, the restriction of competition is not allowed not only by the dominant entity in the market, but also by other companies (Decision of the Moscow Arbitration Court of 2013).

Abuse of inaction occurs when a person has a right, but does not use it, as a result of which harm is caused to another person.

As an example of abuse of the right by unauthorized means, one can cite a situation when organizations include in the contract favorable defects for themselves (Definition of the Supreme Court of the Russian Federation of 2014).

Abuse of the right can be caused by such actions of the person, as a result of which the other party could not exercise the rights belonging to it. For example, by concealing information, as a result of which another person missed the statute of limitations.

Consequences of abuse of the right

The law prohibits acting in bad faith, and even less profiting in this way. Unfair behavior is prohibited for a reason. If found, the unscrupulous person will be held liable for his actions in the form of consequences determined by law.

I must say that the courts are practically unlimited in the measures that are applied to an unscrupulous person. Despite the fact that such measures can only be provided for by law, judicial practice also develops other ways to prevent abuse of the right. This takes into account the nature and consequences of the abuse.

The most common consequence of unfair behavior is full or partial refusal to satisfy claims in order to protect the victim from abuse by the party (Determination of the Supreme Court of the Russian Federation in the case of 2016). Moreover, the courts do not set themselves the task of punishing the guilty person. Therefore, the mere fact of abuse of the right is not enough to dismiss the claim. There are other weighty arguments to be presented to the courts.

Other measures could include, for example:

  • prohibition to perform certain actions;
  • termination of the use of the right without deprivation of this right;
  • refusal to apply the limitation period (Determination of the Supreme Court of the Russian Federation dated May 16, 2016 No. 304-ES16-3710);
  • rejection of the arguments of the abuser;
  • recognition of the transaction as invalid (Article 168 of the Civil Code of the Russian Federation, Resolution of the Plenum of the Supreme Court of the Russian Federation No. 25 of 03/04/2015).

Abuse of procedural law

It is possible to abuse rights not only in the sphere of civil legal relations, but also in the judicial process. This is done, of course, to delay the deadline for the fulfillment of obligations or to try to win a dispute. Thus, most often it is in the judicial process that the form of abuse of the right with an unauthorized purpose is implemented by completely permissible means:

  • filing petitions (to dismiss judges, to suspend proceedings on a case, to postpone a trial);
  • prompt submission of documents;
  • filing an obviously unfounded claim (for example, with the intention to suspend an already pending case);
  • appeal against judicial acts that are not subject to appeal.

Another form of abuse of procedural rights can be inaction:

  • failure to comply with court requirements;
  • failure to provide evidence;
  • failure to appear at the hearing.

At the same time, the failure of the creditor to file a claim for a long time cannot be considered as an abuse of his right (Resolution of the Eighth Arbitration Court appellate court dated 11.07.2014 No. 08AP-3660/2014).

Abuse of procedural rights also entails unfavorable consequences for the person who violated the prohibition (Article 41 of the Arbitration Procedure Code of the Russian Federation, Article 35 of the Code of Civil Procedure of the Russian Federation):

  • imposing on the person who has abused the right the obligation to pay money (for example, the payment of legal costs - article 111 of the Arbitration Procedure Code of the Russian Federation, a fine - article 66, article 225.12 of the Arbitration Procedure Code of the Russian Federation, article 57 of the Code of Civil Procedure of the Russian Federation);
  • refusal by the court to commit the actions for which the petition or demand is filed (resolution of the Presidium of the FAS North-West District of 01.11.2002 No. 56).

Conclusion

As you can see, the prohibition on abuse of law applies to various legal relationships: contractual, non-contractual, procedural. Despite the fact that the good faith of the subjects is assumed, no one is immune from encountering abuse. However, it can be difficult to prove bad faith. Therefore, if there is a suspicion that the counterparty is acting in bad faith, it is better.

If the person himself is tempted to act in bad faith, he should consult with a lawyer to get an idea of possible consequences their actions. They can be more disadvantageous than the consequences of good behavior. In addition, the lawyer will be able to suggest other acceptable ways to achieve the desired result.

Anna Poletaeva

The article was prepared specially for

law firm "Era Prava"


  • (publication)

Abuse of law (abuse of civil rights).

This legal structure has been well known since the days of Roman law. The famous Roman maxim "Summum ius, summa iniuria" ("the highest right is the highest injustice") expresses one of its main ideas - each right must have limits for its implementation, otherwise the rights of others are violated, which, in turn, excludes the observance of the principles of conscientiousness and rationality that are important for civil circulation.

So, article 10 of the Civil Code of the Russian Federation establishes the inadmissibility of actions of citizens and legal entities carried out exclusively with the intention of causing harm to another person, as well as abuse of rights in other forms. The use of civil rights in order to restrict competition, as well as abuse of a dominant position in the market, is not allowed.

A somewhat declarative, at first glance, norm is quite applied in nature, is widely used in practice to comply with, restore the principles of rationality and justice, including, in cases where other norms of law "do not work", cannot be applied due to those or other reasons.

We take into account that the application of the provisions of Article 10 of the Civil Code has been repeatedly explained by the highest courts. First of all, we use the recommendations formed by law enforcement practice contained in “ Review of the practice of application by arbitration courts of Article 10 of the Civil Code of the Russian Federation"(Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 127).

So, let's focus on the main points.

1. Only a person who has such a right can abuse the right.

2. When exercising the right belonging to him, this person has the intention to harm other persons, and it is the purpose of causing harm that makes the person's behavior unlawful, because the person's right itself exists and is not questioned.

3. The consequence of the admitted abuse of the right is the refusal of the person who committed the abuse in judicial protection.

So, the panel of judges of the Supreme Arbitration Court of the Russian Federation in the Decision on the refusal to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation No. lower instances violation of the rules on the jurisdiction of the case to the arbitration court, while the proceedings in the arbitration court were initiated by the applicant himself. An indication of a violation of the application form submitted by the applicant, declared as a basis for revision, was also recognized as an abuse of law.

4. Judicial and arbitration practice uses as a consequence of the abuse of the right not only the refusal of judicial protection, but also the recognition of the transaction as invalid.

A similar situation was described in paragraph 9 of the Review of the practice of application by arbitration courts of Article 10 of the Civil Code of the Russian Federation: purchase and sale transactions were invalidated under paragraph 2 of Article 10 of the Civil Code of the Russian Federation and Art. 168 of the Civil Code of the Russian Federation due to the fact that when making transactions, the buyer abused the right, using a situation in which the seller's manager, acting in bad faith, to the detriment of the seller, sold the property at a deliberately low price, which led to the seller losing the opportunity to use the property he needed for carrying out the main activity, and incurring by the seller additional costs for the lease of this real estate, many times higher than the purchase price of the property received by the seller.

5. Proceeding from the inadmissibility, in order to protect the rights and interests of creditors in bankruptcy, a debtor's transaction made before or after the initiation of a bankruptcy case, which is aimed at violating the rights and legitimate interests of creditors (including a transaction made at a deliberately low price on the alienation of the debtor's property to third parties, in order to reduce the bankruptcy estate of the debtor) (clause 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of April 30, 2009 N 32 "On some issues related to challenging transactions on the grounds provided for by the Federal Law" On Insolvency (Bankruptcy) ") ...

So, on the basis of Article 10 of the Civil Code, in connection with the admitted abuse of the right, the contract of sale and purchase by the debtor (seller) of real estate was declared invalid, at a price more than 48 times lower than the market price, aimed at reducing the debtor's bankruptcy estate and committed to the detriment of the interests of creditors , which included participants in shared construction (Resolution of the Federal Antimonopoly Service of the East Siberian District of June 21, 2012 in case No.A33-3111 / 2009).

6. One of the forms of abuse of the right is also acts of unfair competition (unfair competition), that is, the actions of economic entities that contradict legislation and business customs and are aimed at making a profit at the expense of other economic entities. Legal sanctions for unfair competition include a set of measures of a different nature, and one of them is the refusal to protect civil law as a result of abuse of law.

So, the rules on abuse of rights are enshrined in only one article of the Civil Code. And, nevertheless, let us assert about a fairly wide range of possibilities for the use of this legal structure in different types legal disputes both by plaintiffs, when substantiating their claims, and by defendants, when formulating and filing objections to claims.

7. Useful from the arbitration practice of the Supreme Arbitration Court of the Russian Federation and the West Siberian Region as of March 2014.

7.1. A statement by the acquirer of real estate about the absence of state registration of a lease agreement, which he knew about at the time of acquiring real estate, is an abuse of the right ( Clause 4 Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2014 No. 165 "Review of judicial practice in disputes related to the recognition of contracts as not concluded);

7.2. The inaction of the liquidator to search for the debtor's property is carried out in order to abuse the right ( Resolution of the FAS ZSO dated 18.03.2014 in case No. А03-7554 / 2012);

7.3. Since at the time of concluding the cession agreement, Omskenergosbyt, JSC already met the signs of insolvency, which excluded the possibility of alienating a liquid asset (right of claim to IDGC of Siberia, JSC) in the usual manner; settlement for the assigned right under the cession agreement was made in accordance with Article 410 of the Civil Code of the Russian Federation, the cession agreement, proceeding from the inadmissibility of abuse of civil rights (paragraph 1 of Article 10 of the Civil Code of the Russian Federation) and the need to protect the rights and legitimate interests of the debtor's creditors - OJSC Omskenergosbyt, was lawfully declared invalid. The applicant's argument that OJSC "TGC N 11" at the time of the conclusion of the cession agreement did not know about the insolvency of OJSC "Omskenergosbyt" is refuted by the case materials. The applicant's argument about the illegality of the assertion of the obviousness of signs of insolvency of Omskenergosbyt OJSC before the court makes a ruling on recognizing the bankruptcy petition as justified and introducing the observation procedure against the debtor is erroneous by virtue of the provisions of paragraph 2 of Article 3 of Federal Law No. 127-FZ dated 26.10.2002 ( Resolution of the FAS ZSO dated 13.03.2014 in case No. A46-6112 / 2013);

7.4. The company "Agroservice" and the Entrepreneur give convincing arguments about the fictitiousness of the transaction, which was the basis of the amicable agreement and, as a result, about the violation of the rights and legitimate interests of the Entrepreneur's creditors approved by the amicable agreement. However, these circumstances cannot be established by the court of cassation by virtue of the procedural powers granted to it. In order to exclude the use of a settlement agreement as an instrument of abuse of right, the court, upon receipt of a petition for its approval, must establish that the plaintiff has a subjective right, the defendant has an obligation, as well as the fact of failure to fulfill this obligation, which entailed a violation of the plaintiff's right. In other words, an amicable agreement cannot be approved without establishing the factual circumstances of the case and the presence of debt ( Resolution of the FAS ZSO dated 12.03.2014 in case No. А03-9375 / 2013);

7.5. The actions of the mayor's office on filing an application for the withdrawal of disputed land plots from the cadastral register are a form of abuse of the right, because the refusal of the mayor's office in education was previously declared illegal land plot, failure to act in non-adoption of a decision on the provision of a land plot to the public on the basis of ownership ( Resolution of the FAS ZSO dated 11.03.2014 in case No. A45-10227 / 2013);

7.6. The conclusions of the courts that the chosen method of protecting the violated right in the form of invalidating the charter of the company is not provided for by Article 12 of the Civil Code of the Russian Federation should be recognized as erroneous, based on an incorrect interpretation of these legal norms. The conclusions of the court on the abuse of civil rights by the plaintiff in the form of a requirement to establish for the plaintiff the right to make decisions at the general meeting of the company by a simple majority and to establish corporate control over the company by means of a judicial act were made without taking into account the provisions of Article 2 of the Arbitration Procedure Code of the Russian Federation, Article 10 Civil Code of the Russian Federation ( Resolution of the FAS ZSO dated 11.02.2014 on case No. A46-3112 / 2013);

7.7. The circumstances of the sale of movable property testify to the bad behavior (abuse of the right) of the buyer, who took advantage of the fact that the seller's representative, also acting in bad faith, at the conclusion of the sale and purchase agreement, clearly acted to the detriment of society, as a result of which the society could lose the ability to use the property it needed for implementation of the main activity. The foregoing, in the opinion of the court, is confirmed by the following circumstances: the property under the contract (acceptance certificate) was not transferred to the buyer; documents for vehicles they were also not transferred, the property is used in the main activities of the company; the buyer did not pay for the property; there is no evidence in the case that the buyer took action to compel the seller to execute the contract ( Resolution of the FAS ZSO dated January 29, 2014 in case No. A45-15552 / 2013);

7.8. According to paragraph 1 of Article 10 of the Civil Code of the Russian Federation, actions of citizens and legal entities carried out solely with the intention of causing harm to another person, as well as abuse of rights in other forms, are not allowed. The public order of the Russian Federation presupposes the good faith of the parties entering into private relations, a violation of which is the creation of the appearance of a private-law dispute, including with its referral to the arbitral tribunal to obtain formal grounds for preferential satisfaction of claims in violation of the principle of unified legal protection of creditors' interests, excluding satisfaction claims of some creditors to the detriment of others. The recoverer and the debtor are affiliated persons, artificially create accounts payable and cause harm to other creditors ( Resolution of the FAS ZSO dated 26.12.2013 in case No. A45-28722 / 2012);

7.9. Clause 4 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 30, 2008 No. 30 "On some issues arising in connection with the application of antimonopoly legislation by arbitration courts" provides that courts, assessing actions (inaction) as abuse of a dominant position, should take into account the provisions of Article 10 Of the Civil Code of the Russian Federation, part 2 of article 10, part 1 of article 13 of the Law on the Protection of Competition, and, in particular, to determine whether these actions were committed within the permissible limits of the exercise of civil rights, or they impose unreasonable restrictions on counterparties or set unreasonable conditions for counterparties to exercise their rights. The courts reasonably considered that the management company was obliged to comply with Regulation No. 170, including ensuring the admission of employees of communications enterprises to roofs and attics. In such circumstances, the arbitration courts came to a reasonable conclusion about the presence in the actions of the management company of violations of Part 1 of Article 10 of the Law on the Protection of Competition ( Resolution of the FAS ZSO of 27.11.2013 in case No.A75-409 / 2013);

7.10. The provisions of the charter propose a large amount of information to provide information about a person nominating for the board of directors of a company. Failure to provide at least an insignificant part of this information to the company (or incorrect execution of such a proposal), based on Article 11.11 of the Charter (and the law), entails refusal of candidates to include them in the list of candidates for voting in elections to the Board of Directors. The court of first instance concluded that information about candidates to the board of directors (when they are nominated as such to the board of directors - comment by the author of the article) should be realistically executable and not create obstacles in the exercise of the rights of persons nominating themselves to this body ( Resolution of the FAS ZSO dated 31.10.2013 in case No.A45-3752 / 2013).

p.s. Please note that the use of arguments related to the abuse of rights requires the submission of appropriate evidence and proof of the existence of the right, harm (or the possibility of harm) and other facts.

Abuse of the right in the recovery of the penalty provided for by the supply contract


Below is a judicial act of the Supreme Arbitration Court of the Russian Federation (hereinafter referred to as the Supreme Arbitration Court of the Russian Federation), adopted in the case of collecting a forfeit stipulated by improper performance of obligations under the supply contract.



The plot of the case (briefly). The plaintiff (supplier) applied to the arbitration court with a claim for the recovery of a forfeit under the supply contract, basing its claims on improper performance by the buyer (defendant) of its obligations under the supply contract. The arbitration courts of the first and appellate instance have significantly reduced the amount of the forfeit presented for recovery. The Arbitration Court of the Cassation Instance canceled the decision of the Arbitration Court of the First Instance and the decision of the Arbitration Court of the Appeal Instance, collecting a penalty in full from the defendant.


Features of the case. The Supreme Arbitration Court of the Russian Federation, referring to the provisions of Art. 10 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation), canceled the ruling of the arbitration court of the cassation instance, leaving in force the decision of the arbitration court and the ruling of the arbitration court of the appellate instance. The Supreme Arbitration Court of the Russian Federation noted the following.


The plaintiff (supplier) applied to the arbitration court with a claim to recover a penalty from the supplier (the defendant in the case). The stated requirements were motivated by the fact that the defendant in the case long time violated the terms of the supply agreement, which, according to the supplier, testified to the validity of the claim for the recovery of the forfeit. As indicated in the claim for the recovery of the forfeit, the buyer's violation was that he incorrectly, with errors, filled out the shipping documents. In the supply agreement concluded between the plaintiff and the defendant, a penalty was provided for incorrect execution of shipping documents. In the claim for the recovery of the forfeit, the supplier (plaintiff) referred to these circumstances. In turn, the defendant filed an objection, based on the fact that the supplier is abusing the right, and also submitted a statement to reduce the amount of the penalty.


The arbitration courts of the first instance and the appellate instance took into account the arguments of the buyer - the defendant in the case, but the arbitration court of the cassation instance canceled the judicial acts of the lower instances. As noted by the Supreme Arbitration Court of the Russian Federation, the plaintiff (supplier) knew about violations of the terms of the supply agreement, but within one year did not present any claims against the defendant (buyer). The plaintiff only after the expiration of a year filed a claim for the recovery of a forfeit for improper execution of the shipping documents by the buyer. The defendant has repeatedly stated that the provisions of Art. 10 of the Civil Code of the Russian Federation, and also asked to reduce the penalty under Art. 333 of the Civil Code of the Russian Federation. Recall, according to Art. 10 of the Civil Code of the Russian Federation, the exercise of civil rights is not allowed solely with the intention of causing harm to another person, actions bypassing the law with an unlawful purpose, as well as other knowingly unfair exercise of civil rights (abuse of law). In accordance with paragraph 2 of Art. 10 of the Civil Code of the Russian Federation in the event of non-compliance with the requirements provided for in paragraph 1 of Article 10 of the Civil Code of the Russian Federation, the court, arbitration court or arbitration court, taking into account the nature and consequences of the abuse committed, refuses the person to protect his right in whole or in part, and also applies other measures provided for by law.


The Supreme Arbitration Court of the Russian Federation indicated that from a violation committed by the buyer - the defendant in the case, negative consequences did not come. Moreover, the plaintiff did not dispute this fact. Knowing about the improper execution of documents, the plaintiff within one year did not file a claim with the buyer - the defendant in the case. Thus, the plaintiff, abusing his right, did not use his right provided for in the supply contract.


In addition, the Supreme Arbitration Court of the Russian Federation referred to the fact that the actions of the supplier who filed a claim for the recovery of a forfeit in the amount of more than RUB 13,000,000 showed signs of abuse of the right, since the plaintiff, by his behavior, intentionally contributed to an increase in the amount of the forfeit indicated in the claim for the recovery of the forfeit. The Supreme Arbitration Court of the Russian Federation noted that the arbitration court of first instance reasonably, including due to the above circumstances, reduced the amount of the penalty to 100,000 rubles, rightfully referring to the abuse of the right by the plaintiff. Thus, the claim for the recovery of the forfeit was partially satisfied.

SUPERIOR COURT OF ARBITRATION
RUSSIAN FEDERATION

RESOLUTION
Presidium of the Supreme Arbitration Court
Russian Federation

Moscow city


The Presidium of the Supreme Arbitration Court of the Russian Federation consisting of:


presiding - the Chairman of the Supreme Arbitration Court of the Russian Federation A. Ivanov;


members of the Presidium: Amosova S.M., Andreeva T.K., Batsieva V.V., Goryacheva Yu.Yu., Zavyalova T.V., Kozlova O.A., Makovskaya A.A., Pershutova A.G. , Pronina M.V., Razumova I.V., Sarbasha S.V., Yukhneya M.F. -


considered the application of the limited liability company "TZK AEROFEWELS" on the revision in the order of supervision of the decision of the Federal Arbitration Court of the Moscow District dated 02.10.2014 in case No. A40-41623 / 2013 of the Arbitration Court of the city of Moscow.


Having heard and discussed the report of Judge Goryacheva Yu.Yu., as well as the explanations of the representatives of the persons involved in the case, the Presidium established the following.


Limited Liability Company LUKOIL-AERO (hereinafter referred to as LUKOIL-AERO) filed a claim with the Moscow Arbitration Court against the limited liability company TZK AEROFEWELS (hereinafter referred to as TZK AEROFEWELS) for the recovery of 13,808,949 rubles 96 kopecks forfeit under the supply agreement dated December 26, 2011 No. NP / 865-N.


By the decision of the Arbitration Court of the city of Moscow dated 19.08.2013, the claim was satisfied in terms of collecting a penalty in the amount of 100,000 rubles, the rest of the claim was rejected.


By the decision of the Ninth Arbitration Court of Appeal dated October 29, 2013, the decision of the first instance court was upheld.


The Federal Arbitration Court of the Moscow District, by its decision dated 02.10.2014, changed the above-mentioned judicial acts, and from TZK AEROFEWELS in favor of the company LUKOIL-AERO collected 13,708,949 rubles 96 kopecks forfeit, the rest of the judicial acts were left unchanged.


In a petition filed with the Supreme Arbitration Court of the Russian Federation for a supervisory review of the ruling of the court of cassation, TZK AEROFEWELS asks to cancel it, citing a violation of uniformity in the interpretation and application of the rules of law by arbitration courts.


Also, the society "TZK AEROFEWELS" submitted a statement to the court, in which it asks to turn the execution of the ruling of the court of cassation.


In its response to the application, LUKOIL-AERO asks to keep the ruling of the court of cassation unchanged as it complies with the current legislation.


Having checked the validity of the arguments set out in the application, the response to it and the speeches of the representatives of the persons participating in the case present at the meeting, the Presidium considers that the contested judicial act is subject to cancellation on the following grounds.


As established by the courts and as seen from the case materials, on December 26, 2011, between LUKOIL-AERO (supplier) and TZK AEROFEWELS (buyer), an agreement No. deliver, and the buyer - to accept and pay for petroleum products in the manner and on the terms stipulated by the contract.


Clause 3.8 of the contract establishes that in order to supply products and organize their transportation, the buyer, no later than 14 days before the start of the shipping decade, is obliged to transfer to the supplier detailed ten-day shipping orders (hereinafter - shipping orders) with the obligatory indication in them, including the contact phone number and bank details of consignees.


According to clause 5.7 of the contract, for failure to submit shipping orders within the time period specified in clause 3.8 of the contract, and for submitting shipping orders in violation of the requirements for their registration provided for in clause 3.8 of the contract, the buyer pays the supplier a fine of 5 percent of the cost of products to be delivered in the reporting month ...


The violation by the buyer in the period from January to December 2012 of the requirements for the content of the shipping orders, established by clause 3.8 of the contract, in terms of failure to provide the named information, served as the basis for the supplier's appeal to the arbitration court with this claim.


The fact of improper execution of the shipping order by the buyer during the disputed period is confirmed by the case materials and is not disputed by him on the merits.


In the court of first instance, the TZK AEROFEWELS company stated both the abuse of the right by the company LUKOIL-AERO and the disproportionate penalty charged to the consequences of the violation of the obligation and its reduction on the basis of Article 333 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code) ...


Having established the absence of any consequences of the violation of the obligation, the court of first instance concluded that there were grounds for reducing the amount of the penalty and satisfied the claim in part in the amount of 100,000 rubles.


Since the penalty was accrued not in connection with non-fulfillment or improper fulfillment of a monetary obligation, the court of first instance found the instructions of paragraph 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 22, 2011 No. 81 "On some issues of application of Article 333 of the Civil Code of the Russian Federation Federation ”(hereinafter referred to as Resolution No. 81) on the multiplicity of the amount of the penalty recovered by the courts at the discount rate of the Bank of Russia.


The appellate court agreed with the findings of the first instance court and their legal basis.


Changing the judicial acts of the lower courts and raising the penalty, the court of cassation proceeded from the fact that TZK AEROFEWELS, declaring that the penalty was reduced, did not provide any evidence of its disproportionate to the consequences of the violation of the obligation. The court pointed out the incorrect application of the provisions of Article 333 of the Civil Code and concluded that the forfeit cannot be reduced below the one-time discount rate of the Bank of Russia.


Meanwhile, the court of cassation did not take into account the following.


According to the fourth paragraph of clause 3 of Resolution No. 81, the court of cassation, upon the creditor's complaint, may recover a penalty if it was reduced by the court on its own initiative in the absence of a relevant statement made by the defendant when considering the case according to the rules of the first instance court, or below the one-time discount rate of the Bank of Russia ( except for the case provided for by paragraph 3 of clause 2 of Resolution No. 81), due to the incorrect application by the court of the first or appeal instance of the norms of Article 333 of the Civil Code (clause 2 of part 1 of Article 287 of the Arbitration Procedure Code of the Russian Federation).


Paragraph three of clause 2 of Resolution No. 81 is allowed in extraordinary cases, the reduction of the forfeit below the one-time discount rate of the Bank of Russia on the basis of the corresponding statement of the defendant, when the creditor's losses are compensated due to the fact that the amount of payment for the use of funds provided for by the terms of the obligation (loan, credit, commercial credit) is much higher than the interest usually charged in such circumstances.


According to the legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation, formulated in Resolution No. 11680/10 of 13.01.2011, the refinancing rate, in fact, represents the smallest payment for the use of funds in the Russian economy, which is a well-known fact. Therefore, the reduction of the forfeit is lower than the refinancing rate for general rule should not be allowed, but possible in extreme cases.


Thus, the decrease by the court of first or appellate instance of the amount of the forfeit below the one-time discount rate of the Bank of Russia does not in itself indicate an incorrect application of the provision of Article 333 of the Civil Code and is not a basis for the mandatory recovery of the forfeit by the court of cassation.


In accordance with the first part of Article 333 of the Civil Code, if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty.


The Constitutional Court of the Russian Federation, in its ruling No. 263-О of December 21, 2000, clarified that the opportunity given to the court to reduce the amount of the penalty in case of its excessiveness compared to the consequences of the violation of obligations is one of the legal methods provided for in the law, which are directed against the abuse of the right to free determination the amount of the penalty, that is, in essence, for the implementation of the requirements of Article 17 of the Constitution of the Russian Federation, according to which the exercise of human and civil rights and freedoms should not violate the rights and freedoms of others. That is why the first part of Article 333 of the Civil Code is not about the right of the court, but, in essence, about its obligation to establish a balance between the measure of responsibility applied to the violator and the assessment of the actual (and not possible) amount of damage caused as a result of a specific offense.


However, when the defendant states that the penalty is disproportionate, the court does not automatically reduce its size. The question of the limits of the reduction of the penalty is the circumstance in respect of which the adversarial principle applies.


Considering the application of the company "TZK AEROFEWELS" and applying Article 333 of the Civil Code, the courts of first and appeal instances proceeded from the fact that any adverse consequences caused by improper performance of the obligation by the company "TZK AEROFEWELS" to draw up shipping orders in accordance with the requirements of paragraph 3.8 of the contract , the company "LUKOIL-AERO" did not arise.


The courts established and the representative of the company LUKOIL-AERO confirmed in the court session of the court of first instance that the absence of certain information in the shipping orders (contact phone numbers, bank details of consignees) did not affect the supplier's fulfillment of the obligation to supply the goods, did not create difficulties for him in organizing transportation of the goods to the consignees indicated in the shipping orders did not lead to a violation of the delivery time of the goods.


Taking into account the specific circumstances of the case, the court of first instance came to a conclusion, which the appeal court agreed with, that the penalty to be collected was clearly disproportionate and reduced it to 100,000 rubles.


Nevertheless, without refuting the facts established by the courts of first and appellate instances, which served as the basis for reducing the amount of the penalty below the refinancing rate of the Bank of Russia, the court of cassation made a conclusion contradicting the circumstances of the case that the company "TZK AEROFEWELS" did not prove the disproportionate amount of the recovered penalty to the absent consequences of breach of obligation.


Determining the proportionality of the forfeit in relation to the refinancing rate of the Bank of Russia, the court of cassation proceeded from the fact that the forfeit was presented for the period from January to December 2012 at a rate of 5 percent per month, that is, at a rate of 0.16 percent for each day, which does not usually contradict rates applied in economic activity.


However, at the same time, the court did not take into account that the fine was established for the very fact of failure to submit the shipping order for each consignee within the time period agreed by the contract or failure to provide all the information provided for by the contract in it. The corresponding violation occurs in relation to each separate order and on a date not later than 14 days before the start of the shipping decade.


Since the violation is not lasting, the methodology for calculating the penalty for it does not directly correlate with the refinancing rate of the Bank of Russia.


In addition, when determining the multiplicity of the declared forfeit at the discount rate of the Bank of Russia, the court of cassation did not take into account that this forfeit was established for violation of an informational obligation, which is of an auxiliary nature and is not related to the use of property by one party (including cash) the other party to the obligation.


According to the terms of the contract, the amount of the forfeit is calculated not from the cost of petroleum products to be shipped according to a specific shipping order filled out without specifying all the necessary information, but from the cost of the total volume of delivery of the month for which this order was submitted.


Meanwhile, the discount rate of the Bank of Russia is charged on the price of a commodity or cash loan, the amount of an unfulfilled (overdue) obligation, without affecting other obligations of the parties under the agreement.


Therefore, the criterion used by the court of cassation for comparing the refinancing rate of the Bank of Russia and the declared forfeit, taking into account its legal nature (fine) and differences in other criteria necessary for comparison (non-lasting nature of the violation, mismatch of the accrual base) is inapplicable in this case.


Under such conditions, the court of cassation did not have grounds for changing the judicial acts of the lower courts and additional recovery of the penalty.


In addition, by virtue of Article 10 of the Civil Code (as amended during the period of disputed legal relations), actions of citizens and legal entities carried out solely with the intention of causing harm to another person, as well as abuse of rights in other forms, are not allowed.


In case of failure to comply with these requirements, the arbitration court may refuse to protect the person's right.


Society "TZK AEROFEWELS" in all courts of lower instances declared the application of Article 10 of the Civil Code to the disputed legal relations. At the same time, TZK AEROFEWELS pointed out that, while receiving shipping orders for the whole of 2012 that did not contain information about the contact telephone numbers and bank details of consignees, LUKOIL-AERO, however, did not file a claim on 03/06/2013. declared, continued to carry out deliveries in a timely manner, which contributed to the increase (accumulation) of the forfeit declared for recovery.


The rules of Article 10 of the Civil Code do not exclude the court's qualification as an abuse of the right to demand the recovery of a forfeit in that part of it that is obviously excessive, when the court establishes this fact on the basis of the objections of the person brought to justice.


The question of the application of this article to the legal relations of the parties when assessing the grounds for calculating and the amount of the penalty was not considered by the courts.


At the same time, taking into account that the company "TZK AEROFEWELS" asked in the supervisory appeal to reconsider only the ruling of the court of cassation and on arguments not related to the abuse of rights by the company "LUKOIL-AERO", the Presidium considers it possible to leave the decision and ruling of the court appeal instance unchanged.


Under these conditions, the contested judicial act violates the uniformity in the interpretation and application of the rules of law by the arbitration courts and, in accordance with paragraph 1 of part 1 of Article 304 of the Arbitration Procedure Code of the Russian Federation, is subject to cancellation.


Judicial acts of arbitration courts in cases with similar factual circumstances that have entered into legal force, adopted on the basis of a rule of law in an interpretation that is at variance with the interpretation contained in this resolution, may be revised on the basis of clause 5 of part 3 of Article 311 of the Arbitration Procedure Code of the Russian Federation, if for there are no other obstacles.


According to Part 1 of Article 325 of the Arbitration Procedure Code of the Russian Federation, upon cancellation of an enforced judicial act, the defendant is returned everything that was recovered from him in favor of the plaintiff under the canceled judicial act.


In view of the need to establish the amount of money returned to the company "TZK AEROFEWELS", taking into account the redistribution of court costs, the issue of reversing the execution of the decision of the Federal Arbitration Court of the Moscow District of 02/10/2014 is subject to resolution in the Arbitration Court of the city of Moscow (Part 2 of Article 326 of the Arbitration Procedure Code of the Russian Federation).


Taking into account the foregoing and guided by Article 303, paragraph 5 of part 1 of Article 305, Article 306 of the Arbitration Procedure Code of the Russian Federation, the Presidium of the Supreme Arbitration Court of the Russian Federation


DECIDED:


to cancel the decision of the Federal Arbitration Court of the Moscow District of 10.02.2014 in case No. А40-41623 / 2013 of the Arbitration Court of the City of Moscow.


The decision of the Arbitration Court of the city of Moscow dated 08.19.2013 and the decision of the Ninth Arbitration Court of Appeal dated 29.10.2013 on this case shall be left unchanged.


The application of the limited liability company "TZK AEROFEWELS" on the reversal of the execution of the decision of the Federal Arbitration Court of the Moscow District dated 02/10/2014 to send for consideration to the Arbitration Court of the city of Moscow.

Presiding A.A. Ivanov

To the Lyubertsy City Court

Moscow region

Plaintiff: Ivanov Ivan Ivanovich;

location:

Moscow region, Kotelniki

Defendant: Limited Liability Company

"Builder";

location: Moscow region,

Kotelniki

STATEMENT

abuse of the right

limited liability company "Stroitel"

when establishing, exercising and protecting civil rights under a contract

assignment of rights and transfer of debt

In accordance with the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 23, 2015 N 25 "On the application by the courts of some provisions of section I of part one of the Civil Code of the Russian Federation" , the exercise and protection of civil rights by him under the contract of assignment of rights and transfer of debt (hereinafter referred to as the contract), namely under the circumstances:

a) establishing contractual responsibility;

b) the exercise of rights under contractual responsibility;

c) protection of civil rights under the contract.

Circumstances of establishing contractual liability

All contractual terms, including the terms of contract liability, were developed by the defendant. I was deprived of the opportunity to discuss these conditions, amend or supplement them, object to the inclusion of these conditions in the agreement. When determining the contractual terms of liability, the defendant acted in relation to me on the principle: "we conclude an agreement on my terms, or we do not conclude at all."

Taking advantage of the position of an economically strong party, the defendant completely excluded his liability under the contract and established unfair benefits and advantages in the contract in his favor.

So, for the delay in payment of the contract price, I am obliged to pay the defendant a disproportionately high amount of 0.5% per day, which is 180 percent per annum (clause 4.3. Of the contract).