Earlier in our country, the interests of the claimant were not protected in connection with the pending implementation of court decisions. However, astrant has now appeared. This is a fine that is charged in case the court act is not executed. About how it is applied, whether the collector should indicate specific amounts and when the obligation to pay appears, in detail in the article.
The concept
The institute of astrant is a form of stimulating the debtor to ensure that he fulfills his obligations by a court decision on a voluntary basis. In this case, the debtor should not only perform the relevant actions until the court decision is executed, but also incur additional costs for payment. But one must understand that astrant is not a substitute for publicly-legal ways of influencing a debtor. It serves as a guarantee of a civil law nature that protects the interests of claimants in the field of personal non-property and property relations.
Decree No. 22
The concept of astrant appeared in France in the 19th century. In Russia, this mechanism was not known. Only on April 4, in the Resolution of the Plenum of the Supreme Arbitration Court No. 22 (hereinafter Resolution No. 22), the foundations of astrant were laid. The document refers to the following powers of the creditor in relation to obligations in accordance with Articles 330, 395 and 809 of the Civil Code:
- Claim guarantees in cases of non-compliance with a court decision. This means the payment of interest for the use of other people's money in the amount determined by the court as a result of non-compliance with its decision.
- Demand the award of a penalty or interest for all overdue days of default.
Article 308.3 of the Civil Code
In March 2015, the Civil Code was amended according to which article 308.3 “Protection of the rights of creditors of obligations” appeared. According to its provisions, for failure to comply with a court decision, the debtor will have to pay an amount, which in essence is a form of forfeit. This is carried out on the initiative of the collector. The specific amount is determined by the courts, based on the circumstances of the case.
In practice, special importance is given to paragraph 2 of Article 308.3 of the Civil Code, which states that the use of a judicial penalty (astrant) does not relieve the debtor of liability for failure to fulfill obligations or their improper fulfillment. This means that the debtor may be charged at the same time interest for the use of other people's money and funds in connection with the failure to comply with a court decision.
Since the entry into force of this article, the provisions of Decree No. 22 mentioned above have effectively ceased to apply to the issue of charging interest for the use of other people's money. It took a little more time for a single judicial practice to develop on these standards. Basically, the courts considered cases using astrant using links to Decree No. 22. However, it all depends on the requirements set forth by the plaintiff.
Registration
In order for the court to consider the use of astrant (308.3 of the Civil Code of the Russian Federation), the creditor must make a corresponding request. However, the procedure for filing this application in the procedural legislation is absent. Therefore, questions arise about when it is possible to file this requirement and how to draw it up.
There are differences regarding monetary and non-monetary requirements. So, in a non-monetary statement of claim, the requirement is set forth directly in it or in a separate petition filed during the consideration of the case in court.
If the plaintiff did not put forward the relevant requirements, and as a result, the court did not make a decision about it, but his decision, taken on the merits of the dispute, is not fulfilled, the recoverer has the right to apply to the court with a request to recover money for failure to comply with the court act. Then the court, based on the provisions of Article 324 of the APC of the Russian Federation, will make an appropriate determination.
The situation is different in which the initial discussion was about the use of astrant. This means that article 324 of the APC of the Russian Federation will not apply. In this case, the court fixes the legitimacy of this application if the request is made before the announcement of the court decision. As for the state duty, it is not required to pay on the astrant, although some courts may have a different opinion.
Example: no additional solution applied
To better understand the essence of this phenomenon, consider the following example. The prefecture of the Central district of the capital appealed to the arbitration court with a statement of claim against Shar LLC for debt collection, as well as forfeit. Initially, no requirements for an astent were made. The court ruled in favor of the prefecture. After that, a second application was filed to award the plaintiff interest on the use of other people's money for the entire amount of the penalty from the beginning of the entry into legal force of the court act in an additional decision.
This time, the court refused the applicant’s claim. The same decision was made by the appellate court. The judicial act said that the applicant did not initially put forward the relevant requirements for the collection of interest on borrowed money. This means that the grounds for the additional decision provided for by Part 1 of Art. 178 Code of Arbitration Procedure, no. Therefore, the requirement to use astrant on monetary claims must be indicated before the court decides or is put forward in an independent claim.
Magnitude of astrant
When making claims of a non-monetary nature, it is difficult to calculate the amount payable. The reason for this is that clear orders on this matter are not yet available in the law. Difficulties also arise in those recoverers who put forward monetary claims. In this case, the law establishes uniform rules for determining the corresponding amount. Therefore, of course, that there will be no basis for determining the magnitude of astrant according to the Civil Code of the Russian Federation.
The specific amount of recovery from the debtor, as well as the procedure for determining it, must be set forth by the plaintiff in a statement or in a claim for recovery of money for failure to comply with a court decision. Some points regarding this issue can be found in paragraph 3 of Resolution No. 22. For example, the money that is awarded to the plaintiff from the debtor for failure to comply with the court decision can be set in the exact amount and recovered immediately or in periodic payments. In addition, a progressive payment procedure is allowed.
Applicants are free to determine the amount to be collected. However, this should take into account the restrictions contained in paragraph 1 of Art. 308.1 of the Civil Code. In this regard, we consider additional examples of the use of astrant in Russian law.
Example: collection based on contract terms
The municipal enterprise "Management of the economy" of the city of Rybinsk filed a lawsuit to recover a certain amount for failure to comply with the court act. The size was set at the rate of 1% of the amount of work performed under the contract. This value was contained in the contract itself. The court agreed with the determination of this amount and satisfied the plaintiff's claims in full.
Example: collection before fulfillment of obligations
Two applicants appealed to the court in a statement of claim for failure to comply with a court decision. Due to the fact that the defendant did not fulfill his obligations for more than two years, they demanded to recover from him an amount of 50,000 rubles. for each. However, the calculation was not presented in the application, the amount was chosen at random.However, the court satisfied the applicants' claims in full.
In this case, you need to pay attention to the following circumstances. When the corresponding requirement was presented, the court act was actually executed. Therefore, enforcement proceedings have been discontinued. An appeal was subsequently filed. However, the court gave an explanation of its decision that, in order to award money as compensation for a certain waiting period, it does not matter whether the court decision was enforced or not.
At the same time, not all experts agree with this interpretation of the court. Opinions are expressed that this conclusion contradicts Abs. 1 p. 3 of Resolution No. 22, in accordance with which the use of astrant is associated with the achievement of two goals at the same time, namely:
- Encouraging the debtor to enforce a court decision within a specified period.
- Compensation for waiting for the claimant.
Controversial issues
An astrant does not fulfill its role if at least one of the abovementioned goals is not achieved. In the above example, compensation becomes only a punitive measure in the form of liability for failure to comply with a court act. This contradicts the legal nature of this concept. So far, such a question remains open. Judicial practice has not yet taken shape with respect to the astrant. Some courts make other decisions. There are cases when a cassation appeal was rejected on the basis that the court decision had not yet been enforced at the time of filing the claim.
Example: on taking into account the negative consequences when appointing an astrant
The shareholders demanded to provide documents on the activities of the banking organization. After refusing to do this on a voluntary basis, this requirement was satisfied by the court. The bank was in no hurry to comply with the court order, and the shareholders sent a request to establish a progressive astrant (the value of which grows after the established deadline). The trial court satisfied the applicants' claims, but to a lesser extent.
The court of appeal increased the value of astrant. In the first months, a size of 50,000 rubles was established, and then another 50,000 rubles each. for every month. At the same time, the bank announced the granting of a delay in the execution of the court decision, but the court refused to do so. Prior to the completion of the enforcement proceedings, the banking organization sent an application to reduce the astrant (based on the Resolution of the Plenum of the Supreme Administrative Court No. 22). However, a few days later this decision was canceled.
Ship Positions
Initially, the state body approved the statement of the banking organization that the astrant was reduced. The court explained this decision as follows:
- The decision of the Plenum of the Supreme Arbitration Court was applied, since this possibility took place when the application was accepted.
- Astrent is a form of forfeit; therefore, the provisions of Art. 333 of the Civil Code of the Russian Federation.
- The court took into account the fact that the shareholders did not have negative consequences due to the fact that the documents were not transferred earlier.
The appellate court quashed the court's decision, as it considered that Article 333 of the Civil Code of the Russian Federation could not be used in this case. Astrent was appointed in its original form, since at that time its value was already checked properly.
An appeal was sent to this decision. At the same time, the court quashed the decision taken on the appeal, and agreed with the opinion of the court of first instance. After this, a new complaint was submitted to the board, which, in turn, satisfied it, having canceled the decision to reduce the astrant and sent the case for a new consideration. The Board indicated that the Resolution of the Plenum of the Supreme Arbitration Court has lost force, and the new document does not contain provisions on reducing the size of astrant. Therefore, a review of its size is not possible.
Conclusion
The last example shows how controversial the positions of the courts are regarding the new legal phenomenon for Russia.This means only one thing: that the courts have not yet developed a common understanding of how it works, how to calculate astrent, what needs to be taken into account to establish its value, and also how to revise it, if possible. However, lawyers will probably be interested in this topic. In particular, these are: determination of astrant in the Civil Code of the Russian Federation, the procedure for its application, types of forfeit, distribution of general norms about it, consideration in courts.