For calculation on a calculator in accordance with Art. 395 of the Civil Code of debt or forfeit, the rules for calculating interest are used, established by the versions of Article 395 of the Civil Code of the Russian Federation, in force for the corresponding calendar period.
In cases of evasion on the part of the debtor from the return of funds, or their unlawful withholding, as well as other delays in their payment, in accordance with, interest is charged and paid on the amount of the debt.
Unless other rates are provided for by the agreement, then, depending on the period of debt, interest for the use of other people's funds is calculated:
from August 1, 2016 - at the key rate of the Central Bank of the Russian Federation, which was in force in the relevant periods.
In accordance with Article 395 of the Civil Code of the Russian Federation, in cases of unlawful withholding of funds, evasion of their return, or other delay in their payment, interest on the amount of the debt is subject to payment. The interest rate is determined the key rate of the Bank of Russia in force in the relevant periods.
from June 1, 2015 to July 31, 2016 inclusive - at the average bank interest rates on deposits of individuals published by the Bank of Russia at the place of residence (for legal entities - location) of the creditor;
In accordance with the amendments made to Article 395 of the Civil Code of the Russian Federation by Federal Law No. dated 03/08/2015, for the use of other people's funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or saving at the expense of another person, paying interest on these funds. The amount of interest is determined by those existing at the place of residence of the creditor or, if the creditor is a legal entity, at its location, published by the Bank of Russia and taking place in the relevant periods average bank interest rates on deposits of individuals. To calculate interest, it is necessary to proceed from bank interest rates on short-term deposits of individuals in the relevant currency. If the average rate in rubles or foreign currency for a certain period is not published, the amount of interest to be collected is determined based on the latest published rate for each of the periods of delay.
In accordance with the wording of paragraph 1 of Article 395 of the Civil Code of the Russian Federation, which was in force until June 1, 2015, the amount of interest is determined by the bank interest rate existing at the place of residence of the creditor (for legal entities - location), the discount rate of bank interest on the date of fulfillment of the monetary obligation or its corresponding part or, when recovering a debt in court, on the day the claim is filed or on the day the decision is made.
In accordance with the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation N 13 and the Plenum of the Supreme Arbitration Court of the Russian Federation N 14 of 08.10.1998, the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation N 6 and the Plenum of the Supreme Arbitration Court of the Russian Federation N 8 of 07/01/1996, the discount rate is understood as the single discount rate of the Bank of Russia for credit resources, provided to commercial banks (refinancing rate).
Russian Federation
CIVIL CODE OF THE RUSSIAN FEDERATION (PART 1)
Chapter 25. Liability for violation of obligations
Article 395 Liability for failure to fulfill a monetary obligation
For the use of other people's funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or saving at the expense of another person, interest on the amount of these funds shall be paid. The amount of interest is determined by the average rates of bank interest on deposits of individuals existing at the place of residence of the creditor or, if the creditor is a legal entity, at its location, published by the Bank of Russia and taking place in the relevant periods. These rules apply unless a different amount of interest is established by law or by agreement.
(Clause 1 as amended by Federal Law No. 42-FZ dated March 8, 2015)
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 excess of this amount.
Interest for the use of other people's funds shall be charged on the day the amount of these funds is paid to the creditor, unless a shorter period is established for the calculation of interest by law, other legal acts or an agreement.
In the event that an agreement of the parties provides for a penalty for non-fulfillment or improper fulfillment of a monetary obligation, the interest provided for in this article shall not be recoverable, unless otherwise provided by law or the contract.
(Clause 4 was introduced by Federal Law No. 42-FZ of March 8, 2015)
Accrual of interest on interest (compound interest) is not allowed, unless otherwise provided by law. For obligations fulfilled in the course of entrepreneurial activities by the parties, the use of compound interest is not allowed, unless otherwise provided by law or contract.
(Clause 5 was introduced by Federal Law No. 42-FZ of March 8, 2015)
If the amount of interest payable is clearly disproportionate to the consequences of the breach of obligation, the court, at the request of the debtor, has the right to reduce the interest provided for by the agreement, but not less than to the amount determined on the basis of the rate specified in paragraph 1 of this article.
(Clause 6 was introduced by Federal Law No. 42-FZ of March 8, 2015)
Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation
No. 13/14 dated 08.10.1998
"On the practice of applying the Civil Code of the Russian Federation on interest for the use of other people's money"
When calculating annual interest payable at the refinancing rate of the Central Bank of the Russian Federation, the number of days in a year (month) is assumed to be 360 and 30 days, respectively, unless otherwise established by agreement of the parties, rules binding on the parties, as well as business customs. 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 provided by law or by agreement of the parties.
According to the provision of Art. 395 of the Civil Code of the Russian Federation in cases of illegal retention of funds, evasion of their return, other delay in their payment, interest on the amount of the debt is payable. There is no clear indication of what is meant by debt (principal or total debt, taking into account the forfeit and state duty) and what are the deadlines for the collection of interest for the use of other people's money (the moment the court decision enters into force or the writ of execution enters proceedings).
The organization has a debt under the contract. A court decision was issued to recover from the defendant the amount of the principal debt, the penalty and the costs of paying the state fee. The respondent paid nothing.
Is it legal to accrue interest for the use of other people's funds on the basis of Art. 395 of the Civil Code of the Russian Federation for the entire amount, including the penalty and state duty? From when should interest accrue?
1. According to the Civil Code of the Russian Federation, in cases of unlawful withholding of funds, evasion of their return, or other delay in their payment, interest on the amount of the debt shall be paid. The amount of interest is determined by the key rate of the Bank of Russia in force in the relevant periods. These rules apply unless a different amount of interest is established by law or by agreement.
Indeed, the concept of debt is not defined by the provisions of the Civil Code of the Russian Federation. However, according to paragraph 4 of the said article, in the case when the agreement of the parties provides for a penalty for non-fulfillment or improper fulfillment of a monetary obligation, the interest provided for in this article is not subject to recovery, unless otherwise provided by law or contract. This norm was introduced into the civil legislation of March 8, 2015 N 42-FZ, which entered into force on June 1, 2015.
It follows from the Civil Code of the Russian Federation that it applies only to a contractual penalty. However, judicial practice proceeds from the fact that this rule also applies to a legal penalty (and the resolution of the Plenum of the Supreme Court of the Russian Federation of March 24, 2016 N 7 "On the application by the courts of certain provisions of the Russian Federation on liability for breach of obligations"; hereinafter - Resolution N 7). From these clarifications, it can be seen that there is some uncertainty in the position of the RF Armed Forces regarding the scope of application of the Civil Code of the Russian Federation. On the basis of Decree No. 7, it can be assumed that interest under the Civil Code of the Russian Federation is not recoverable in cases where the contract or law provides for the so-called set-off penalty (paragraph one of the Civil Code of the Russian Federation). In paragraph 50 of the said decision, no exceptions were made in this regard. In our opinion, this is more consistent with the literal meaning of the Civil Code of the Russian Federation.
Prior to the adoption of N 7, the question of the validity of the Civil Code of the Russian Federation in time was controversial in practice. A variety of points of view were expressed (see, for example, the decisions of the Ninth AAC dated 09/09/2015 N 09AP-29589/15, the Sixth AAC dated 08/18/2015 N 06AP-3748/15, the Seventh AAC dated 07/30/2015 N 07AP-5885/15) . It follows from Decree No. 7 that this rule does not apply to contracts concluded earlier than June 1, 2015. When deciding on the ratio of interest under the Civil Code of the Russian Federation and the penalty in relation to such contracts, one should be guided by the previous version of the Russian Federation, taking into account the established practice of its application (definition of the IC on economic disputes of the Armed Forces of the Russian Federation of November 10, 2016 N 309-ES16-9411).
In this regard, we note that until June 1, 2015, the legislation did not give a direct answer to this question. Judicial practice proceeded from the fact that, as a general rule, the creditor has the right, at his choice, to apply interest or a penalty to the debtor. In cases where the penalty was of a punitive nature, it was allowed to collect both interest and penalties (clause 6 and clause 15 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 08.10.1998 N 13/14, resolution of the Plenum of the Armed Forces of the Russian Federation of 28.06 2012 No. 17).
2. It should be noted that significant changes have taken place in recent years in the legislation and law enforcement practice regarding the application of the provisions of the Civil Code of the Russian Federation in the event of untimely execution of a judicial act. Previously, resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 04.04.2014 N 22 were applied to these relations. The Supreme Arbitration Court of the Russian Federation believed that, since the Civil Code of the Russian Federation is subject to application to any monetary claim arising from civil relations, as well as to legal expenses, the legislation allows the calculation of interest on a sum of money awarded by the court as a consequence of non-execution of a judicial act. Based on this and in order to ensure the timely execution of the judicial act by the debtor, the court, satisfying the application for the recovery of funds, awards the plaintiff interest for the use of other people's funds for the entire amount recovered from the moment the judicial act enters into legal force and until its actual execution (hereinafter referred to as interest in case of non-compliance with the court order).
However, at present, the specified paragraph 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 04.04.2014 N 22 is not subject to application in accordance with paragraph seven of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 06.23.2015 N 25.
Federal Law No. 42-FZ of March 8, 2015 of the Russian Federation supplemented by Article 308.3, which provides for the possibility of awarding a sum of money in case of non-execution of a judicial act. The specified norm contains a reference to the Civil Code of the Russian Federation, dedicated to the penalty. This suggests that the Civil Code of the Russian Federation should not be directly applied in the relevant respects.
From the provisions of Resolution No. 7, it follows that the interest specified in the Civil Code of the Russian Federation is accrued from the date of delay in the fulfillment of monetary obligations arising from contracts and is accrued on the amount the payment of which is overdue in accordance with the terms of the contract. The provisions of the Civil Code of the Russian Federation do not apply to the relations of the parties that are not related to the use of money as a means of payment (means of repaying a monetary debt), and are also not charged on the amount of economic (financial) sanctions (, Decrees N 7).
As you can see, the Civil Code of the Russian Federation provides for liability for violation of a monetary obligation. Therefore, the accrual of interest is allowed only on the amount of the specified legal obligation based on material legal relations. Judicial expenses collected by a court decision cannot be included in the monetary obligation, since the legal nature of such costs is not based on a material obligation. Therefore, after recognizing paragraph 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 04.04.2014 N 22 as invalid, the courts recognize the accrual of interest provided for as unreasonable , for the amount the payment of which is overdue in accordance with the terms of the contract, respectively, the accrual of interest on the amount of the state duty is unlawful.
Prepared answer:
Legal Consulting Service Expert GARANT
Verkhova Nadezhda
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Barseghyan Artem
The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.
The current edition of the Civil Code of the Russian Federation, and in particular the above-mentioned article, is taken as the basis for the calculations of the calculator. The calculator can also take into account the refinancing rates of the Central Bank, which were valid until 2015
This calculator is made to calculate interest for the use of borrowed funds in accordance with the rules of Article 395 of the Civil Code of the Russian Federation.
The general formula for calculating interest is as follows: Amount of interest = Amount of debt x Bank of Russia rate in force during the delay / Number of days in a year x Number of days of delay.
The main parameters for calculating interest are the following debt parameters:
- sum;
- currency;
- delay period;
- key rate of the Central Bank;
The rate of the Central Bank of the Russian Federation is determined separately for each period of delay. We remind you that it is applied if the parties have not determined the amount of the interest rate in the agreement. If the contract specifies the percentage of the penalty, then the calculation should be carried out in.
Make sure to correctly indicate the periods of debt - sometimes the site calendar fails and it is easier to set the date manually. Often the first date will be the first day of delay, and the last date will be the date the debt is actually paid.
Changing the rules for calculating interest
Additional complexity of the calculation is added by the fact that the key rate changes periodically, and sometimes the calculation rules also change. However, this calculator takes into account both the current key rate and the Central Bank rates that were in effect until June 1, 2015. The calculator also takes into account legislative changes in the calculation procedure:
from August 1, 2016, when calculating interest under Art. 395 of the Civil Code of the Russian Federation, the key rate of the Central Bank is applied;
from June 1, 2015 to July 31, 2016, interest was calculated based on the average bank rates on deposits of individuals in the respective region (for this, the calculator has the option to select a region).
Calculations in the calculator
You can also enter data on partial payment of debts or additional debts into the calculator, including you can copy this data from the tables using the recommendations for copying in the calculator.
Article 395 of the Civil Code of the Russian Federation. Liability for failure to fulfill a monetary obligation
- In cases of unlawful withholding of funds, evasion of their return, other delay in their payment, interest on the amount of the debt shall be paid. The amount of interest is determined by the key rate of the Bank of Russia in force in the relevant periods. These rules apply unless a different amount of interest is established by law or by agreement. (Clause 1 as amended by Federal Law No. 315-FZ of July 3, 2016)
- 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 excess of this amount.
- Interest for the use of other people's funds shall be charged on the day the amount of these funds is paid to the creditor, unless a shorter period is established for the calculation of interest by law, other legal acts or an agreement.