Publication date: 04.06.2024
lawyer, 23 years of experience in enforcement.
An important component of any contract is liability for violation of its terms in the form of punishment. If the counterparty does not comply with the terms of the contract for any reason, fines will allow the other party to compensate for the losses incurred. In addition, the sanctions prescribed in the contract serve as an impetus to the honesty of the counterparty in contractual relations.
Punishment is both a monetary expense and a means of fulfilling an obligation. The definitions of the word "franchise" in the Civil and Economic Codes of Ukraine differ somewhat.
Yes, the first part of Art. 549 of the Civil Code, a penalty (fine, interest) is a monetary or other reward that the debtor must hand over to the creditor in case of non-payment of the debt.
Modern legislation provides for the following types of penalties for non-compliance with the contract:
1. A penalty is a penalty that is assigned as a percentage of the unrealized or unrealized obligation.
2. Penalty is a charge calculated as a percentage of the total amount of monetary debt for each day of additional time spent on the debt.
In addition, in accordance with Part 1 of Art. 230 of the Civil Code — The monetary amounts of the penalty are determined by the amount of money (penalty, interest, interest) that a participant in economic relations is obliged to pay in the event of their violation, non-fulfillment or improper registration.
In this context, the Supreme Economic Court of Ukraine expressed its opinion in paragraph 48 of letter No. 01-8/211: Since the Civil Code of Ukraine does not contain definitions of punishments, fines or fines associated with non-fulfillment or improper fulfillment of financial obligations, it is necessary to proceed from the definitions , provided by the Central Committee of Ukraine.
It is important to recognize that a penalty is still possible even if it is not expressly stated in the terms of the contract. The only exception is cases where the parties do not comply with the provisions of the written contract.
However, according to the first part of Art. 231 of the Civil Code, the law can establish the maximum fine for certain types of crimes, the change of which is not allowed by agreement of the parties, this is called "non-contractual punishment".
Advantages and disadvantages of specific applications of fines.
Penalties are charged only for non-fulfillment of monetary obligations.
The cost of the penalty and the fine associated with it can be collected simultaneously.
The maximum amount that can be charged as a penalty is limited by the double NBU accounting rate that was in effect during the period of penalty payment (but the parties can also agree on a larger amount in the contract).
Damage compensation is also considered one of the types of economic punishment (regulated by Article 22 of the Community Council and Chapter 25 of the group.
Costs related to damages paid by a person who violated an economic rule are:
- The value of lost, damaged or destroyed property is determined by law, which requires the following criteria:
Other persons are charged labor costs, materials and additional costs (payment to other organizations, cost of additional work, additionally purchased materials, etc.). the value of the party affected by the non-payment by the other party;
- unearned profit (forgotten benefit), which the party that lost money had the right to calculate, if the other party faithfully fulfilled its obligations.
- material compensation for moral damage provided for by law.
Damages are subject to compensation regardless of the terms of the contract in this regard. A deed that excludes or limits compensation for damages is considered null and void.
Damages are recoverable to the extent not covered by fines, but the contract or legal code may have exceptions.
As a result, the parties to the contract can provide for a special protocol on compensation for damages in the presence of a penalty, which can be 3% annually and inflationary growth. In this regard, the debt is subject to payment for an overdue monetary obligation, the creditor's demand requires payment of the total amount of the debt in accordance with the established level of inflation for the entire period of overdue (the so-called inflationary), plus 3% per annum (the so-called annual) of the overdue amount , if another interest rate is not established by contract or law (Part 2 of Article 625 of the CCU).
The fee can be inflationary or annual:
• only for late payment of a monetary obligation;
• at the debtor's separate application;
regardless of which term is relevant to the implied contract or not.
From practice, it is important to recognize that the courts adhere to the position that inflationary and annual sanctions are not considered a punishment, but a means of protecting property rights and interests, which are compensated by the creditor as a way of delaying the payment of its debt for the time of delay.
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