395 of the Civil Code of the Russian Federation (new rules). How to calculate interest under Article 395 of the Civil Code of the Russian Federation (new rules) Calculation of interest on 395 after 01.06
Article 395 of the Civil Code of the Russian Federation. Liability for failure to fulfill a monetary obligation
(old edition)
Information about the new edition of Art. 395 of the Civil Code of the Russian Federation (valid from June 1, 2015)
1. For the use of someone else’s funds as a result of their unlawful retention, evasion of their return, other delay in their payment or unjust receipt or savings at the expense of another person, interest on the amount of these funds is subject to payment. The amount of interest is determined by the discount rate of bank interest at the place of residence of the creditor, and if the creditor is a legal entity, at its location on the day of fulfillment of the monetary obligation or its corresponding part. When collecting a debt in court, the court may satisfy the creditor's claim based on the discount rate of bank interest on the day the claim was filed or on the day the decision was made. These rules apply unless a different interest rate is established by law or agreement.
2. If the losses caused to the creditor by the unlawful use of his funds exceed the amount of interest due to him on the basis of paragraph 1 of this article, he has the right to demand compensation from the debtor for losses in the amount exceeding this amount.
3. Interest for the use of someone else’s funds is charged on the day the amount of these funds is paid to the creditor, unless a shorter period is established for the accrual of interest by law, other legal acts or agreement.
From 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 October 8, 1998 No. 13/14:
2. When calculating the annual interest payable at the refinancing rate of the Central Bank of the Russian Federation, the number of days in a year (month) is taken equal to 360 and 30 days, respectively, unless otherwise established by agreement of the parties, rules binding on the parties, as well as business customs.
Interest is accrued until the moment of actual fulfillment of the monetary obligation, determined on the basis of the conditions on the procedure for payments, the form of settlements and the provisions of Article 316 of the Civil Code of the Russian Federation on the place of fulfillment of the monetary obligation, unless otherwise established by law or agreement of the parties.
Interest is calculated on the amount of debt including VAT. Cm.
Article 395 of the Civil Code of the Russian Federation(liability for failure to fulfill a monetary obligation) establish liability for violation of a monetary obligation for misconduct:
1) unlawful withholding of funds;
2) evasion of repayment of monetary debt;
3) unjustified receipt or saving of funds at the expense of another person;
4) and others.
Provisions of Art. 395 of the Civil Code of the Russian Federation are subject to application to any monetary obligation regardless of the legal relationship under which this obligation arose.
If the parties use non-monetary means (goods, works, services) as a means of payment, the rules of Art. 395 of the Civil Code of the Russian Federation do not apply.
Responsibility in the form of payment of interest under Art. 395 of the Civil Code of the Russian Federation is a continuing sanction.
Interest under art. 395 of the Civil Code of the Russian Federation are accrued from the moment of violation of a monetary obligation until the entire amount of the debt is repaid to the creditor.
Until June 01, 2015 interest under art. 395 of the Civil Code of the Russian Federation was calculated at the refinancing rate.
From June 01, 2015 The amount of interest for the use of other people's funds is determined by the average bank interest rates on deposits of individuals:
1) at the place of residence of the creditor;
2) at the location of the creditor (for legal entities).
June 10, 2015 The Central Bank of Russia has posted information on interest rates used when calculating interest under Art. 395 of the Civil Code of the Russian Federation on its official website: http://www.cbr.ru/statistics/?Prtid=int_rat&ch=PAR_222#CheckedItem
Until June 01, 2015 when calculating interest at the refinancing rate, the number of days in a year was used - 360, the number of days in a month - 30 (clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 13, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 of October 8, 1998).
At the time of writing this article, there is no official explanation for the question: “What number of days should be used when calculating interest at the average bank interest rate on deposits of individuals - 360 or 365 days.”
Example of wording under Article 395 of the Civil Code of the Russian Federation in a contract:
“If the goods are not delivered within the time period established by paragraph ___ of the contract, the Supplier is obliged to return the advance payment received for the goods. In this case, the Supplier is charged interest for the unlawful use of other people's funds in the amount of double the bank interest rate. Interest is collected from the moment the advance payment is received until the day the amount of these funds is paid to the Buyer for each day of delay.”
“If the goods are not paid for within the time period established by clause ___ of the contract, the Buyer shall pay the Supplier interest for the unlawful use of other people’s funds in the amount of the discount rate of bank interest on the amount of the overdue payment for each day of delay.”
If the contract does not establish a payment period, interest is charged:
under a supply (purchase and sale) agreement- after 3 working days (the period allotted to banks for transferring non-cash payments) from the date of transfer of the goods.
For example, if the goods were transferred on the 01st, then the last day of payment will be the 03rd (provided that the days from 01 to 03 are working days), and the penalty will begin to accrue on the 04th;
under a contract or paid services - after the expiration of 7 days from the date the creditor submits a claim against the debtor demanding payment.
For example, if the counterparty received your claim on the 01st, then the last day of payment will be the 07th, and from the 08th a penalty will be charged (interest under Article 395 of the Civil Code of the Russian Federation).
An example of calculating interest under Article 395 of the Civil Code of the Russian Federation.
The amount of debt is 100,000 rubles. The period of delay is 12 days. The bank interest rate on deposits of individuals in rubles in the Ural Federal District is 11.27%.
Until June 1, 2015 and the amount of interest would be:
100,000 x 8.25% / 360 x 12 = 275 rubles.
After June 1, 2015 the interest amount will be:
100,000 x 11.27% / 360 x 12 = 375.67 rub.
Attention!
Until June 1, 2015, interest under Art. 395 of the Civil Code of the Russian Federation are accrued according to the previously valid version of the Civil Code of the Russian Federation.
From June 1, 2015, interest under Art. 395 of the Civil Code of the Russian Federation are accrued according to the new edition of the Civil Code of the Russian Federation.
It is known that on June 1, 2015, changes were made to the Civil Code of the Russian Federation related to the procedure for calculating interest for the use of other people's funds. In this regard, many are perplexed by the calculation of interest under Article 395 of the Civil Code of the Russian Federation, since the new edition of this article establishes the rules for calculation at a certain average rate, and not at the rate of the Central Bank of the Russian Federation. It should be noted that the old rules must be applied to legal relations that arose before 06/01/2015, since the law does not have retroactive effect. To calculate interest (penalties, penalties) both according to old and new rules, you can use a calculator to calculate interest under Art. 395 of the Civil Code of the Russian Federation, presented above.
Before the changes came into force, calculations under 395 of the Civil Code of the Russian Federation were made based on the refinancing rate of the Central Bank of the Russian Federation. On the one hand, this suited all practicing lawyers, since the refinancing rate from September 14, 2012 was 8.25% and it was convenient to work with. On the other hand, the appearance in the new version of average bank interest rates tied to the place of registration of the lender had a number of prerequisites.
Firstly, in the old version of clause 1 of Art. 395 of the Civil Code of the Russian Federation stated that the amount of interest is determined by the bank interest rate existing at the location of the creditor on the day of fulfillment of the monetary obligation. However, Resolutions of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 No. 13/14 equated the local bank interest rate to the refinancing rate of the Central Bank of the Russian Federation for seventeen years.
Secondly, the reference to only one of the nine rates, which exists at the time of delay in a particular federal district, is not without logic, since the legislator proceeds from the fact that the creditor could deposit illegally withheld funds in the bank at exactly this percentage in his population point.
Thirdly, it is possible that with this innovation the legislator wanted to encourage the parties, even at the stage of concluding an agreement, to negotiate the amount of interest for the use of other people's funds. Indeed, in the event of a delay in payment, it is much easier to make calculations at one rate, pre-established by the contract, than to look at what the rate was in a separate period of time in a separate federal district.
For example, let's try to calculate interest under Article 395 of the Civil Code of the Russian Federation according to the old rules. Let's imagine that there is a contract for the supply of ceramic tiles, where Solntse LLC acts as a supplier, and Moroz LLC acts as a buyer. At the same time, Solntse LLC fulfilled its obligations under the contract and delivered tiles of proper quality and within the period established by the contract, and Moroz LLC accepted the goods, but did not pay for them. Let’s say the cost of the supplied tiles was 100,000 rubles, and the delay in payment lasted from April 10, 2015 to May 24, 2015. At the same time, the parties did not stipulate sanctions for the use of other people’s funds in the contract itself.
Based on the above, we make the following calculations:
100,000 rub. / 360 days * 45 days * 8.25% = 1,031 rub. 25 kopecks
Thus, Solntse LLC can recover from Moroz LLC a penalty amount of 1,031 rubles. 25 kopecks
Interest under Article 395 of the Civil Code of the Russian Federation according to the new rules is calculated on the basis of average bank interest rates on deposits of individuals. These rates are published by the Bank of Russia.
By clicking on this link, we find that the last changes to the average rates were made on February 19, 2016. As an example, let’s look at the supply agreement again. Let’s assume that Solntse LLC, under a new contract, supplied putty to Moroz LLC on time. The cost of putty was 50,000 rubles, and the delay in payment on the part of Moroz LLC lasted from 09/05/2015 to 10/04/2015. Moreover, the parties to the agreement were registered in different federal districts, Solntse LLC in Moscow, that is, in the Central Federal District, and Moroz LLC in Yekaterinburg, that is, in the Ural Federal District. Based on the above, the calculation must be made at two rates: 10.51% and 9.91%, since they were both in effect in the Central Federal District during the period of delay.
We make the following calculations:
50,000 rub. / 360 days * 10 days * 10.51% = 145 rub. 97 kopecks
50,000 rub. / 360 days * 20 days * 9.91% = 275 rub. 28 kopecks
145 rub. 97 kopecks + 275 rub. 28 kopecks = 421 rub. 25 kopecks
Thus, Moroz LLC must pay Solntse LLC a penalty amount of 421 rubles. 25 kopecks
We see that thanks to the new 395 Civil Code, the calculation has indeed become somewhat more complicated. Moreover, in the new version of Article 395, three new clauses have appeared, which may also affect the final amount of the penalty.
Paragraph 4 of Article 395 is aimed at ensuring that the parties fix the amount of the penalty in the contract itself, as already mentioned above. However, the presence in the contract of a clause on the amount of the penalty does not prevent the creditor from calculating interest based on the average rate of his federal district, since both calculations will be recognized by the court as correct.
Clause 5 of Article 395 states that the accrual of interest on interest is not allowed. However, in the event of violations committed not by the buyer, but by the supplier, it is possible to provide in advance in the contract for liability both as a fine and as a penalty. Paragraph 6 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 22, 2011 No. 81 states that if a penalty is applied to the debtor in the form of a combination of a fine and penalties for one violation, the debtor has the right to demand a reduction in the penalty. But no one prevents the parties from formalizing in the contract liability for improper delivery as two different violations. For example, stipulate in the contract a sanction in the form of a fixed fine for under-delivery of the volume of goods (in the event that they delivered not 20 bags of putty, but only 10), while prescribing a penalty for a violation related to deadlines (in the event that the putty was delivered a month later than they promised).
Paragraph 6 of Article 395 stipulates that the amount of interest payable for the use of other people's funds may be reduced, but not less than to the amount determined by the average rate. In essence, this is compliance, that is, the person whose funds were used by the debtor has the right to receive compensation, but this person no longer has the right to count on unjustified benefits.
It seems that with the accumulation of judicial practice under Article 395 of the Civil Code of the Russian Federation, calculations of interest for the use of other people’s funds will no longer cause difficulties for anyone, and young lawyers will find it strange that such calculations were once made at the same rate for for several years.
Civil Code of the Russian Federation Article 395. Liability for failure to fulfill a monetary obligation
1. For the use of someone else’s funds as a result of their unlawful retention, evasion of their return, other delay in their payment or unjust receipt or savings at the expense of another person, interest on the amount of these funds is subject to payment. The amount of interest is determined by the average bank interest rates 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 existing in the relevant periods. These rules apply unless a different interest rate is established by law or agreement.
2. If the losses caused to the creditor by the unlawful use of his funds exceed the amount of interest due to him on the basis of paragraph 1 of this article, he has the right to demand compensation from the debtor for losses in the amount exceeding this amount.
3. Interest for the use of someone else’s funds is charged on the day the amount of these funds is paid to the creditor, unless a shorter period is established for the accrual of interest by law, other legal acts or agreement.
4. If 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 collection, unless otherwise provided by law or agreement.
5. Calculation of interest on interest (compound interest) is not allowed, unless otherwise provided by law. For obligations fulfilled when the parties carry out business activities, the use of compound interest is not allowed, unless otherwise provided by law or agreement.
6. If the amount of interest to be paid is clearly disproportionate to the consequences of violation of the obligation, the court, at the request of the debtor, has the right to reduce the interest provided for in the contract, but not less than to the amount determined based on the rate specified in paragraph 1 of this article.
Leave your comments and suggestions for improving this article in the comments.
An agreement between two individuals or firms is a very important component of future business relationships. But the person with whom you entered into a transaction does not always fulfill its obligations.
That is why the civil code of the Russian Federation has a law that will protect your interests if the partner cannot or does not want to make payments as agreed. This is Article 395 of the Civil Code of the Russian Federation - “Responsibility for failure to fulfill a monetary obligation.” Not so long ago, namely on 02/01/2015, new amendments were made to it.
Let's remember what the article was like before they were introduced. Do not forget to take into account that this law applies only in cases where the contract does not specify sanctions for failure to pay on time.
In this article:
Calculation of interest under Art. 395 of the Civil Code of the Russian Federation before amendments to legislation
What exactly has changed in Article 395? And the procedure for calculating interest has changed. To find out what it was before, we need to refer to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 13 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 14. Referring to these documents, we can calculate the percentage that will be charged to the debtor in case of delay.
The article says that interest is calculated based on the current refinancing rate of the Central Bank of the Russian Federation. If the contract does not specify the days for which the fine will be paid, then they are determined in accordance with the law.
Please note that only “effective days” are taken into account, that is, there are only 30 days in each month.
How to calculate interest under Article 395 of the Civil Code of the Russian Federation until 02/01/2015
So, we have received all the information we need, now all that remains is to apply it in practice. First of all, you should find out the rate per day of delay.
To do this, we need to divide the current annual refinancing rate of the Central Bank of the Russian Federation by 360 days; from 2012 to June 1, 2015 it was equal to 8.25% per year.
These simple steps will allow us to determine what amount will be charged per day of delay. It must be multiplied by the number of days of non-payment. The finished formula looks like this: (“refinancing rate of the Central Bank of the Russian Federation”: (360 × 100)).
This is not the only way to calculate interest. If you approach the matter from the other side, then the amount of debt can be distributed over 360 days. The result is multiplied by the refinancing rate and the number of effective days.
The formula should look like this: (“debt amount”: 360 x “days of delay” x “refinancing rate”)
To understand this difficult situation, we will again resort to the help of the Civil Code of the Russian Federation. Namely to Art. 191, which tells us that the accrual of debt begins the next day after the event, in our case, non-payment. It is worth noting that this day may be ineffective, that is, the 31st.
Therefore, there is no need to worry; you will receive payment for the penalty in any case if you use the laws correctly.
And now everything is in order
Before you start calculating interest, make sure whether there were any instructions on this matter in the contract? If it does not describe what to do in case of late payments, then you can safely follow the above methods.
Remember about effective days, do not forget that you have the right to demand a penalty from the debtor on the very next day of delay, even if it is ineffective.
During legal proceedings, of course, it is best to resort to legal assistance; this will give you not only confidence in your words, but will also allow you not to miss the smallest details of the case.
Your knowledge and experience as a lawyer will be of great benefit during the legal process.
Note
after June 1, 2015. In this case it applies dated June 1, 2015, according to which the calculation is carried out at the average bank interest rates of the Central Bank of the Russian Federation for the period of the obligation arising
Note
You have selected the date of occurrence of obligations until June 1, 2015.
In this case, some judges use from January 1, 1995 for the entire period of delay, and according to which the calculation is carried out at the refinancing rate (and from January 1, 2016 at the key rate) of the Central Bank of the Russian Federation on the date the obligation arose.
Previously, on June 1, the calculation was made the same for all regions of the Russian Federation based on the Central Bank refinancing rate (Refinancing rate of the Central Bank of the Russian Federation until June 1, 2015).
This rule applies if the interest rate is not established by agreement or by law. If the losses caused to the creditor exceed the amount of interest, he has the right to also demand from the debtor compensation for losses that exceed this amount.
Explanation of debt calculations for 30-day months
Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of October 8, 1998 N 13/14 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's funds"
- Choose 30 day calculation, if the case is being considered in the Arbitration Court and the period of delay is calculated in years, and these are periodic payments (for example, rent).
- Choose a calculation by calendar days, if it is a debt between individuals on a receipt for 3 months and 3 days, because It is not difficult to calculate the actual number of days. This adds several days to the period for calculating the debt, and therefore money.
When calculating interest on the use of someone else's money, it is necessary to correctly calculate the period of such delay. If the payment deadline is set by a specific date (for example, until May 4, 2017, until the 10th of each month, etc.), then the period of delay is calculated from the next day (for example, from May 5, 2017, from the 11th of each month ).
Calculation of penalties for periodic payments
It is important to note that when calculating interest for periodic payments (for example, rent), the amount of interest for using someone else's money will be the sum of all periods.
Example. An apartment lease agreement was concluded for a period of 6 months from January 2017. The rent is 20,000 per month, payment must be made by the 10th of each month. If the tenant paid for the first month, but did not pay for the rest, then interest will be calculated for the following periods:
1). 20,000 rubles, period of delay from 02/11/2017 to 09/30/2017 (for example, the day the claim was filed).
2). 20,000 rubles, overdue period from 03/11/2017 to 09/30/2017.
3). 20,000 rubles, overdue period from 04/11/2017 to 09/30/2017.
4). 20,000 rubles, overdue period from 05/11/2017 to 09/30/2017.
5). RUB 20,000, overdue period from 06/11/2017 to 09/30/2017.
As a result, each payment will have its own amount of interest for the use of someone else’s money, and if all these amounts are added up, you will get the final amount of interest for the use of someone else’s money.
Calculation of interest without a specified repayment period
Sometimes situations arise in life when no date or date specified fulfillment of a monetary obligation, that is, the period for returning the money is not defined. In this case, the law should be followed. For example, if the receipt only indicates that one person received a loan from another in the amount of 100,000 rubles. In this case, the refund period is not specified, which means it is necessary to apply the law (Part 1 of Article 810 of the Civil Code of the Russian Federation):
The period of delay begins on 31 days after receipt of the request - this will be the first day of delay.
For example, the debtor received a demand for the return of money on July 10. This means that the period of delay will be considered as follows: July 10 + 30 days for execution. August 10 is the last day for debt repayment. The delay period begins on August 11.
Penalty at independently established percentages (Contractual penalty)
Current legislation allows self-setting interest the parties, without limiting the amount of such interest, that is, if the parties agree that 1% per day is charged for each day of delay on the amount that is not returned, then this is the amount that is taken into account.
BUT despite this, the court may, at the request of the debtor, reduce this percentage if it is disproportionate to the consequences of non-payment of the debt (Part 6 of Article 395 of the Civil Code of the Russian Federation), but not less than to the average bank interest rate on deposits of individuals.
Calculator Note
It is important to understand that different rules of law apply to different situations. For example, to calculate interest for delayed payment of wages, a different interest rate is used (see the calculator for calculating interest on arrears of wages), since in this case it is not the norms of civil law that apply, but the norms of labor law.
There are also other cases when the amount of interest is clearly established, but in a different amount than Art. 395 Civil Code of the Russian Federation. Art. 23 of the “Law on the Protection of Consumer Rights” says
Conclusion from the calculator
It is necessary to understand that for civil law (all kinds of contracts, for example, loans, purchase and sale, rent, supply, provision of services, etc.), the norms of the Civil Code of the Russian Federation apply (Article 395 of the Civil Code of the Russian Federation or a contractual penalty, the amount of which is indicated in the contract itself ), for labor relations - the norms of the Labor Code of the Russian Federation (Article 236 of the Labor Code of the Russian Federation). If the matter concerns the protection of consumer rights, then the law “On the Protection of Consumer Rights” applies.
If you have any doubts about this or that issue, you can always seek advice from the lawyers of our website.
If you have lent money to someone, documenting it with a receipt or a loan agreement, but the debt is not repaid, then you can go to court to protect your rights.
1. Place of filing the claim
As a general rule, a claim is filed at the place of residence of the defendant (Article 28 of the Code of Civil Procedure of the Russian Federation).
There are other options (for example, if the defendant is a legal entity, then the claim can be filed at the location of the branch of Article 29 of the Code of Civil Procedure of the Russian Federation).
2. Which court should I go to?
It is necessary to distinguish between the jurisdiction in which court to file a claim: magistrate or in district court.
If the debt is less than 50,000 rubles and there is a loan agreement, a receipt, then you need to contact magistrate(Art., Code of Civil Procedure of the Russian Federation). Thus, jurisdiction depends on the category of the case, the amount of the claim and the claims.
If the claim is more than 50,000 rubles or there is a demand for moral damages, the claim is filed in the district court.
3. Drawing up a statement of claim.
To go to court, you need to draw up a statement of claim. It describes in detail all the circumstances of what happened, in addition, it indicates the exact amount that you are asking to recover.
For example, if you lent 40,000 rubles, but 5,000 rubles. They have already returned it to you, then the claims will be for the return of 35,000 rubles and interest for the use of other people’s money, etc.
In this case, the amount of the claim does not include amounts for legal expenses (state fees, legal assistance). That is, if a claim is made to collect state duty from the defendant, then this amount is not included in the cost of the claim.
For example, if the plaintiff asks to recover a debt of 35,000 rubles, interest for the use of other people's money of 9,000 rubles and legal costs of 10,000 rubles, then the amount of the claim will be 44,000 rubles. Accordingly, the claim is submitted to the magistrate.
4. Interest calculation document
In addition to the contract, receipt and other documents, it is necessary provide interest calculations.
This calculation can be included either in the text of the statement of claim itself, or performed as a separate document, which, accordingly, can be called: “Calculation of interest.”
When calculating interest, it is important to take into account that interest on the use of other people’s funds may be established by agreement.
If there is no such condition in the agreement or receipt itself, then the percentage specified in the law (Article 395 of the Civil Code of the Russian Federation) is applied, and it can be calculated using the calculator on the page of which you are located.
If a specific percentage is specified in the agreement or receipt, then that is what is applied.
5. State duty
When filing a claim, a state fee is paid. It is paid before filing a claim, since a receipt for payment of the state fee is provided along with the statement of claim to the court - original receipt required.
The state duty is calculated in accordance with the Tax Code of the Russian Federation and directly depends on the price of the claim, as well as on the court in which the case is heard (magistrate, district court, arbitration court).
6. Complete list of documents for filing a claim
The list of documents that are attached to the claim is established by Art. 132 Code of Civil Procedure of the Russian Federation
7. Going to court to collect debt
When the statement of claim is ready and all documents have been collected, you can go to court. The statement of claim can be submitted directly to the court, and you will be given a mark indicating acceptance of the claim on your copy of the claim. Or you can send it by registered mail with a list of attachments.
After this, you will only have to wait for the court to notify you of the date of the court hearing.
Afterword
If the law “On the Protection of Consumer Rights” is violated, then the procedure for filing a claim is no different. The only difference will be in the calculation of interest, and also in the fact that the state duty for this category of cases is not paid.
FAQ
1. Where to get rates for calculations under Art. 395 GK for dollars and euros?
Question No. 3 of the section “Explanations on issues arising in judicial practice” from the “Review of the judicial practice of the Supreme Court of the Russian Federation No. 1 (2017)” (approved by the Presidium of the Supreme Court of the Russian Federation on February 16, 2017) highlights this problem:
QUESTION 3. On the basis of what rate is determined the amount of interest paid for unlawful withholding of funds, evasion of their return, or other delay in their payment, in the case when, in accordance with the legislation on currency regulation and exchange control, the use of foreign currency is allowed when making payments on obligations and is a monetary obligation expressed in it, and when is a monetary obligation payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units?
ANSWER. In accordance with paragraph 1 of Art. 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 amount of interest is determined by the key rate of the Bank of Russia in force during the relevant periods. These rules apply unless a different interest rate is established by law or agreement.
The specified procedure for calculating interest is subject to application in cases where a monetary obligation is expressed in rubles, since the key rate of the Bank of Russia, being the main indicator of monetary policy, is established by the Central Bank of the Russian Federation in percentage terms and is used for settlements in the national currency - the ruble.
At the same time, in accordance with the legislation on foreign exchange regulation and exchange control, in certain cases, a monetary obligation may be expressed in foreign currency, and the use of foreign currency may be allowed when making payments on obligations. Also, the monetary obligation itself may stipulate that it is payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units (clauses 1, 2 of Article 317 of the Civil Code of the Russian Federation).
Based on the interpretation of Art. 309, 317 and 395 of the Civil Code of the Russian Federation in their interrelation, in the event of a delay in the fulfillment of a monetary obligation, the currency of the debt of which is foreign currency, interest for unlawful withholding of funds, evasion of their return, or other delay in their payment are subject to calculation in foreign currency, since the purpose of paying these interest is the restoration of the creditor's property status and compensation for the income he has not received from the possible use of funds not returned on time by the debtor.
Taking into account that the key rate of the Bank of Russia is the interest rate on operations of the Bank of Russia providing short-term loans to commercial banks on an auction basis, the amount of interest paid for violation of a monetary obligation, the currency of which is foreign currency, should be determined taking into account similar indicators and calculated based on average interest rates in the currency of the debt.
Sources of information on average rates on short-term loans in foreign currency are the official website of the Bank of Russia on the Internet and the official publication of the Bank of Russia "Bulletin of the Bank of Russia".
If the average rate in the relevant foreign currency for a certain period is not published, the amount of interest payable is established based on the latest published rate for each period of delay.
When such publications are not available, the amount of interest to be collected is calculated on the basis of a certificate from one of the leading banks at the location of the creditor, confirming the average rate applied by him on short-term foreign currency loans
We take information about rates from this page of the Central Bank of the Russian Federation from the section “Information on loans in rubles, US dollars and euros | in general for the Russian Federation.”
2. Why does the calculator take 365/366 days a year and not 360?
Indeed, Resolution of the Plenum of the Supreme Court of the Russian Federation No. 13, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 of October 8, 1998 (hereinafter referred to as Resolution No. 13/14) stated:
When calculating the annual interest payable at the refinancing rate of the Central Bank of the Russian Federation, the number of days in a year (month) is taken equal to 360 and 30 days, respectively, unless otherwise established by agreement of the parties, rules binding on the parties, as well as business customs.
However this item was canceled Clause 84 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 No. 7
Rates valid from 06/01/2015 to 07/31/2016
in rubles
| Application start date | 01.06 2015 |
15.06 2015 |
15.07 2015 |
17.08 2015 |
15.09 2015 |
15.10 2015 |
17.11 2015 |
15.12 2015 |
25.01 2016 |
19.02 2016 |
17.03 2016 |
15.04 2016 |
19.05 2016 |
16.06 2016 |
15.07 2016 |
| Federal District | |||||||||||||||
| Central | 11,80 | 11,70 | 10,74 | 10,51 | 9,91 | 9,49 | 9,39 | 7,32 | 7,94 | 8,96 | 8,64 | 8,14 | 7,90 | 8,24 | 7,52 |
| Northwestern | 11,44 | 11,37 | 10,36 | 10,11 | 9,55 | 9,29 | 9,25 | 7,08 | 7,72 | 8,72 | 8,41 | 7,85 | 7,58 | 7,86 | 7,11 |
| Southern | 11,24 | 11,19 | 10,25 | 10,14 | 9,52 | 9,17 | 9,11 | 6,93 | 7,53 | 8,73 | 8,45 | 7,77 | 7,45 | 7,81 | 7,01 |
| North Caucasian | 10,46 | 10,70 | 9,64 | 9,49 | 9,00 | 8,72 | 8,73 | 6,34 | 7,01 | 8,23 | 7,98 | 7,32 | 7,05 | 7,40 | 6,66 |
| Privolzhsky | 11,15 | 11,16 | 10,14 | 10,12 | 9,59 | 9,24 | 9,15 | 7,07 | 7,57 | 8,69 | 8,29 | 7,76 | 7,53 | 7,82 | 7,10 |
| Ural | 11,27 | 11,14 | 10,12 | 9,96 | 9,50 | 9,09 | 9,20 | 7,44 | 7,89 | 8,57 | 8,44 | 7,92 | 7,74 | 7,89 | 7,15 |
| Siberian | 10,89 | 10,81 | 9,89 | 9,75 | 9,21 | 9,02 | 9,00 | 7,18 | 7,81 | 9,00 | 8,81 | 8,01 | 7,71 | 7,93 | 7,22 |
| Far Eastern | 11,20 | 11,18 | 10,40 | 10,00 | 9,71 | 9,46 | 9,26 | 7,64 | 8,06 | 8,69 | 8,60 | 8,01 | 7,62 | 7,99 | 7,43 |
| Crimean | 14,18 | 13,31 | 9,89 | 9,07 | 8,53 | 8,17 | 7,75 | 8,09 | 8,32 | 8,82 | 8,76 | 8,37 | 8,12 | 8,20 | 8,19 |
Information on average bank interest rates on deposits of individuals in dollars to calculate interest under Art. 395 Civil Code of the Russian Federation
| Application start date | 01.06 2015 |
15.06 2015 |
15.07 2015 |
17.08 2015 |
15.09 2015 |
15.10 2015 |
17.11 2015 |
15.12 2015 |
25.01 2016 |
19.02 2016 |
17.03 2016 |
15.04 2016 |
19.05 2016 |
16.06 2016 |
15.07 2016 |
| Federal District | |||||||||||||||
| Central | 5,40 | 4,40 | 4,02 | 3,03 | 2,55 | 2,24 | 2,23 | 1,92 | 1,90 | 1,79 | 1,66 | 1,65 | 1,65 | 1,44 | 1,29 |
| Northwestern | 5,48 | 4,09 | 3,62 | 2,73 | 2,25 | 1,77 | 1,90 | 1,65 | 1,52 | 1,61 | 1,70 | 1,42 | 1,59 | 1,27 | 1,12 |
| Southern | 4,91 | 3,75 | 3,35 | 2,67 | 2,27 | 1,95 | 1,59 | 1,57 | 1,52 | 1,68 | 1,48 | 1,38 | 1,37 | 1,23 | 1,18 |
| North Caucasian | 4,69 | 3,32 | 2,63 | 2,43 | 1,82 | 1,50 | 1,66 | 1,41 | 1,24 | 1,57 | 1,47 | 1,26 | 1,32 | 1,05 | 0,89 |
| Privolzhsky | 5,68 | 4,28 | 3,79 | 2,92 | 2,42 | 1,99 | 1,90 | 1,87 | 1,63 | 1,74 | 1,56 | 1,50 | 1,70 | 1,32 | 1,25 |
| Ural | 5,62 | 4,29 | 3,47 | 2,60 | 2,22 | 1,89 | 1,76 | 1,65 | 1,45 | 1,81 | 1,61 | 1,93 | 1,61 | 1,37 | 1,24 |
| Siberian | 5,34 | 4,00 | 3,80 | 2,51 | 2,28 | 1,67 | 1,78 | 1,73 | 1,58 | 1,72 | 1,59 | 1,92 | 1,58 | 1,37 | 1,74 |
| Far Eastern | 5,08 | 4,23 | 3,76 | 2,74 | 2,15 | 1,89 | 1,71 | 1,80 | 1,69 | 1,68 | 1,45 | 1,49 | 1,54 | 1,32 | 1,22 |
| Crimean | 4,43 | 3,93 | 2,80 | 2,42 | 2,67 | 2,46 | 2,08 | 1,78 | 2,39 | 2,02 | 1,99 | 1,58 | 1,79 | 1,77 | 1,93 |
Information on average bank interest rates on deposits of individuals In Euro to calculate interest under Art. 395 Civil Code of the Russian Federation
| Application start date | 01.06 2015 |
15.06 2015 |
15.07 2015 |
17.08 2015 |
15.09 2015 |
15.10 2015 |
17.11 2015 |
15.12 2015 |
25.01 2016 |
19.02 2016 |
17.03 2016 |
15.04 2016 |
19.05 2016 |
16.06 2016 |
15.07 2016 |
| Federal District | |||||||||||||||
| Central | 4,88 | 3,84 | 3,36 | 2,49 | 2,01 | 1,69 | 1,58 | 1,40 | 1,24 | 1,13 | 1,01 | 0,93 | 0,94 | 0,92 | 0,70 |
| Northwestern | 5,21 | 3,82 | 3,35 | 2,17 | 1,69 | 1,31 | 1,25 | 1,20 | 0,97 | 0,96 | 0,85 | 0,80 | 0,95 | 0,78 | 0,55 |
| Southern | 4,31 | 3,62 | 3,12 | 2,14 | 1,69 | 1,50 | 1,24 | 1,17 | 1,09 | 1,14 | 0,97 | 0,82 | 0,76 | 0,72 | 0,54 |
| North Caucasian | 4,22 | 2,80 | 2,24 | 1,55 | 1,27 | 1,09 | 1,24 | 0,94 | 0,72 | 0,86 | 0,85 | 0,77 | 0,69 | 0,66 | 0,46 |
| Privolzhsky | 4,87 | 3,65 | 3,62 | 2,47 | 2,10 | 1,63 | 1,59 | 1,35 | 1,21 | 1,04 | 1,00 | 0,87 | 0,95 | 0,83 | 0,59 |
| Ural | 5,39 | 3,83 | 3,28 | 2,09 | 1,79 | 1,31 | 1,40 | 1,31 | 1,11 | 1,16 | 1,01 | 1,16 | 0,92 | 0,74 | 0,51 |
| Siberian | 4,58 | 3,85 | 3,20 | 1,85 | 1,32 | 1,32 | 1,31 | 1,12 | 1,20 | 1,09 | 1,05 | 0,86 | 0,84 | 0,66 | 0,50 |
| Far Eastern | 4,37 | 4,36 | 3,21 | 2,02 | 1,73 | 1,67 | 1,51 | 1,36 | 1,37 | 1,20 | 1,11 | 0,90 | 0,84 | 0,86 | 0,78 |
| Crimean | 3,11 | 3,47 | 3,35 | 2,94 | 2,85 | 2,36 | 1,91 | 1,80 | 1,93 | 2,30 | 1,84 | 1,82 | 1,94 | 1,50 | 1,19 |
