Protection of consumer rights in the Tomsk region. Reduction of penalties in the arbitration court Arbitration court reduction of sanctions state duty

By decision of the arbitration court, the amount of the penalty was reduced. The court also reduced the state duty. The plaintiff believes that the court unlawfully reduced the amount of the state duty and filed an appeal against the court's decision regarding the reduction of the state duty, referring to paragraph 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 20, 1997 No. 6 "On some issues of application by arbitration courts of the legislation of the Russian Federation on state duty" , according to which, if the arbitration court reduces the amount of the penalty on the basis of Article 333 of the Civil Code of the Russian Federation, the plaintiff’s expenses for state duty are subject to reimbursement by the defendant, based on the amount of the penalty that would be subject to recovery without taking into account its reduction. In the complaint, the plaintiff asks:
1.collect the state duty in full.
2. The court assigns the costs of considering the appeal to the defendant.
In this regard, I have 2 questions:
1. how to challenge his complaint?
2. Are his actions legal, because the court reduced the state duty, then why should the defendant bear the costs?

The lawyer, S.O. Koroleva, responded:

Hello, Elena!
If the plaintiff himself has reduced the amount of the claim for the collection of a penalty, the overpaid state duty is returned to the plaintiff by the Federal Treasury as paid in an amount greater than provided by law (subparagraph 3 of paragraph 1 of Article 333.22 of the Tax Code of the Russian Federation).
If the amount of the declared penalty is reduced by the arbitration court according to the rules of Article 333 of the Civil Code of the Russian Federation on the basis of the defendant’s application, the plaintiff’s expenses for the state duty are not returned in part of the reduced amount from the budget and are subject to compensation by the defendant based on the amount of the penalty that would have been collected without taking into account its reduction.
In cases where the plaintiff is exempt from paying the state duty, the corresponding amount of the state duty is recovered from the defendant in proportion to the amount of the penalty reduced by the court (Part 3 of Article 110 of the Arbitration Procedure Code of the Russian Federation).”
When applying to court to collect a penalty, the plaintiff does not know whether it will be reduced. For this reason, the state fee must be paid on the entire amount required.
If the amount of the penalty was reduced by the arbitration court, the Tax Code of the Russian Federation does not provide grounds for the return of state duty from the federal budget.
Reducing the amount of the penalty and awarding the plaintiff a smaller amount than he asked for in the statement of claim, in terms of procedural law, means partial satisfaction of the claim, therefore, formally, the plaintiff has the right to demand recovery of the paid state duty from the defendant in proportion to the satisfied claim.
However, to the Presidium of the Supreme Arbitration Court of the Russian Federation, such a decision seemed unfair in relation to the plaintiff, and in paragraph 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 20, 1997 N 6 “On some issues of application by arbitration courts of the legislation of the Russian Federation on state duty”, it is explained that when reducing the amount of the penalty on the basis Art. 333 of the Civil Code of the Russian Federation, the plaintiff’s expenses for state duty are subject to reimbursement by the defendant based on the amount of the penalty that would be subject to recovery without taking into account its reduction. This is an established and common practice for everyone, so we can assume that the judge’s mistake will be corrected by the appellate court.

The Civil Code of the Russian Federation, the establishment in the contract of the maximum or minimum amount (upper or lower limit) of the penalty is not an obstacle to its reduction by the court.

71. If the debtor is a commercial organization, an individual entrepreneur, as well as a non-profit organization when it carries out income-generating activities, the reduction of the penalty by the court is allowed only upon a substantiated application of such a debtor, which can be made in any form (clause 1 of Article 2, clause 1 of Article 6 , paragraph 1 of Article 333 of the Civil Code of the Russian Federation).

When collecting a penalty from other persons, the rules of Article 333 of the Civil Code of the Russian Federation can be applied not only at the request of the debtor, but also at the initiative of the court, if there is an obvious disproportion of the penalty to the consequences of violation of the obligation (clause 1 of Article 333 of the Civil Code of the Russian Federation). In this case, when considering the case, the court brings up for discussion the circumstances indicating such disproportionality (Civil Procedure Code of the Russian Federation, Arbitration Procedure Code of the Russian Federation). If there is evidence in the case confirming the obvious disproportion of the penalty to the consequences of violation of the obligation, the court reduces the penalty according to the rules of Article 333 of the Civil Code of the Russian Federation.

The defendant’s statement about the obvious disproportion of the penalty to the consequences of the violation of the obligation does not in itself constitute an acknowledgment of the debt or the fact of the violation of the obligation.

72. The defendant’s application for the application of the provisions of Article 333 of the Civil Code of the Russian Federation can be made exclusively when considering the case by the court of first instance or the court of appeal if it proceeded to consider the case according to the rules of proceedings in the court of first instance (part 5 of Article 330, Civil Procedure of the Russian Federation, part 6.1 of article 268, part 1 of article 286 of the Arbitration Procedure Code of the Russian Federation).

If the reduction of the penalty is allowed at the initiative of the court, then the issue of such a reduction can also be raised for discussion of the parties by the court of appeal, regardless of whether it proceeds to consider the case according to the rules of proceedings in the court of first instance (parts 1 and 2 of Article 330 of the Code of Civil Procedure of the Russian Federation, parts 1 and 2 of Article 270 of the Arbitration Procedure Code of the Russian Federation).

The grounds for canceling a judicial act in cassation in the part relating to the reduction of the penalty according to the rules of Article 333 of the Civil Code of the Russian Federation may be a violation or incorrect application of substantive law, which, in particular, includes a violation of the requirements of paragraph 6 of Article 395 of the Civil Code of the Russian Federation, when the amount of the penalty for delay in fulfilling a monetary obligation, reduced below the limit established by paragraph 1 of Article 395 of the Civil Code of the Russian Federation, or a reduction of the penalty in the absence of an application in the cases established by paragraph 1 of Article 333 of the Civil Procedure Code of the Russian Federation (Civil Procedure Code of the Russian Federation, paragraph 2 of part 1 of Article 287 of the Arbitration Procedure Code of the Russian Federation).

73. The burden of proving the disproportionate penalty and the unreasonableness of the creditor's benefit rests with the defendant. The disproportionate and unreasonable nature of the benefit can be expressed, in particular, in the fact that the possible amount of losses of the creditor that could arise as a result of a violation of the obligation is significantly lower than the accrued penalty (Part 1 of Article 56 of the Code of Civil Procedure of the Russian Federation, Part 1 of Article 65 of the Code of Arbitration Procedure of the Russian Federation). The defendant’s arguments about the impossibility of fulfilling the obligation due to a difficult financial situation, the presence of debt to other creditors, the seizure of funds or other property of the defendant, the lack of budget financing, non-fulfillment of obligations by counterparties, voluntary repayment of the debt in full or in part on the day of consideration of the dispute, the defendant’s fulfillment of social significant functions, the debtor’s obligation to pay interest for the use of funds (for example, on the basis of Articles 317.1, , Civil Code of the Russian Federation) cannot in themselves serve as a basis for reducing the penalty.

74. When objecting to an application to reduce the amount of the penalty, the creditor is not obliged to prove the occurrence of losses (clause 1 of Article 330 of the Civil Code of the Russian Federation), but has the right to present evidence of the consequences of such violations of obligations for a creditor acting reasonably and prudently under comparable circumstances, for example, indicate changes in average market indicators (interest rates on loans or market prices for certain types of goods in the corresponding period, exchange rates, etc.).

75. When assessing the proportionality of the penalty to the consequences of breach of obligation, it is necessary to take into account that no one has the right to take advantage of their illegal behavior, and also that the unlawful use of someone else’s money should not be more profitable for the debtor than the conditions for lawful use (paragraphs 3, 4 Article 1 of the Civil Code of the Russian Federation).

Evidence of the validity of the amount of the penalty may include, in particular, data on the average fee for short-term loans to replenish working capital issued by credit institutions to persons engaged in business activities, or fees for short-term loans issued to individuals at the location of the creditor during the period of violation of the obligation , as well as inflation rates for the corresponding period.

Having established the grounds for reducing the amount of the penalty, the court reduces the amount of the penalty.

The rules of paragraph 6 of Article 395 of the Civil Code of the Russian Federation do not apply when reducing the penalty established for violation of a non-monetary obligation, unless otherwise provided by law.

77. A reduction in the amount of a contractual penalty payable by a commercial organization, an individual entrepreneur, as well as a non-profit organization that has violated an obligation while carrying out income-generating activities, is allowed in exceptional cases if it is clearly disproportionate to the consequences of violating the obligation and may entail the creditor receiving an unjustified benefit (paragraphs 1 and 2 of Article 333 of the Civil Code of the Russian Federation).

78. The rules for reducing the amount of the penalty on the basis of Article 333 of the Civil Code of the Russian Federation also apply in cases where the penalty is determined by law, for example, 23.1, paragraph 5 of Article 28, and the Law of the Russian Federation of February 7, 1992 N 2300-1 “On the Protection of Consumer Rights " (hereinafter referred to as the Law on the Protection of Consumer Rights), paragraph 21 of Article 12 of the Law on Compulsory Motor Liability Insurance, provisions of the Federal Law of January 10, 2003 N 18-FZ "Charter of Railway Transport of the Russian Federation",

ARBITRATION COURT OF YAROSLAV REGION

150999, Yaroslavl, Lenin Ave., 28 http://yaroslavl.arbitr.ru

In the name of the Russian Federation

SOLUTION

Case No. A82-2638/2016
Yaroslavl
May 30, 2016
The operative part of the decision was announced on May 26, 2016

Arbitration Court of the Yaroslavl Region composed of Judge V.V. Gushchev,

when keeping the minutes of the court session by assistant judge V.A. Tantseva,

having considered at the court hearing the claim of the Limited Liability Company "Asha" (TIN 7604268557, OGRN 1147604016977)

to the Borisoglebsk District Consumer Society (TIN 7614000478, OGRN 1027601069418)

on collection of debt under a supply agreement and penalties for late payment

starring

from the plaintiff – Doroshenko I.E. – representative by power of attorney dated May 18, 2016,

from the defendant – Bubnov V.K. – representative by power of attorney dated May 17, 2016

installed:

Limited Liability Company "Asha" filed a claim with the Arbitration Court against the Borisoglebsk District Consumer Society for the collection of debt under the goods purchase and sale agreement No. 300 dated October 22, 2015 in the amount of RUB 106,973. 94 kopecks, penalties for late payment in the amount of 111,492 rubles. 94 kopecks In addition, ask to recover the costs of paying for the services of a representative in the amount of 20,000 rubles. and state duty expenses.

During the trial, the plaintiff, by way of article, reduced the amount of the claim to the amount of a penalty in connection with the defendant's full payment of the principal amount.

In accordance with Part 1 of Article of the Arbitration Procedural Code (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), the reduction was accepted by the court.

At the court hearing, the defendant confirmed his improper fulfillment of his obligations to pay the debt on time, and filed a written application to reduce the amount of the penalty due to its disproportion to the consequences of failure to fulfill the obligation.

The plaintiff objected to the application to reduce the amount of the penalty.

Having studied the case materials, the court found the following.

Between the limited liability company "Asha" and the Borisoglebsk District Consumer Society, a contract for the purchase and sale of goods No. 300 dated October 22, 2015 was concluded, under the terms of which the Seller (plaintiff) undertook to supply, and the Buyer (defendant) undertook to accept and pay for the goods, name and quantity which is agreed upon in the delivery notes.

In accordance with clause 5.2 of the agreement, payment for goods is made in cash or non-cash form within 21 calendar days from the date of transfer of the goods to the buyer.

In pursuance of the terms of the agreement, the Seller delivered the goods to the Buyer according to delivery notes No. 80443 dated 12/02/2015, No. 81083 dated 12/04/2015, No. 82971 dated 12/17/2015.

The defendant's improper fulfillment of the obligation to pay for the goods was the basis for the plaintiff to file a claim in court for forced collection of the debt with the accrual of penalties in accordance with clause 6.1 of the sales contract.

During the trial, the defendant paid in full the outstanding payment for the goods supplied, and therefore the plaintiff reduced the amount of the claim to the amount of the penalty calculated on the day of actual fulfillment of the obligation.

Having analyzed the written evidence in the case, assessing the positions of the parties, the court considers that the claim was brought justifiably, corresponds to the case materials, purchase and sale agreement No. 300 dated October 27, 2015, articles of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).

The court's conclusion is based on the following.

In support of the expenses incurred, the plaintiff presented: contract for paid services No. 002 dated 02/15/2016, act on the provision of legal services No. 1 dated 04/20/2016, receipt No. 16 dated 02/19/2016 for the amount of 20,000 rubles.

The defendant did not present any objections regarding the amount of legal costs claimed by the plaintiff.

In relation to the situation under consideration, the plaintiff’s expenses for paying for the services of a representative relate to the legal costs provided for in Art. and are subject to compensation at the expense of the defendant according to the rules of Art. in full.

The principle of proportionality, provided for in paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 1 of 01/21/2016 “On some issues of application of the legislation on compensation of legal costs associated with the consideration of the case” is not subject to application, in connection with the court’s satisfaction of the plaintiff’s demands in full, taking into account their reduction by the plaintiff in accordance with the article.

In accordance with paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 1 of January 21, 2016, the provisions on proportional compensation of legal costs are also not subject to application when resolving a claim for the collection of a penalty that was reduced by the court due to the disproportion to the consequences of the violation of the obligation.

The state duty is subject to reimbursement to the plaintiff at the expense of the guilty debtor in accordance with Art. .

By virtue of part 1 of the article, the plaintiff has the right, when considering a case in an arbitration court of first instance, before the adoption of a judicial act that ends the consideration of the case on the merits, to change the basis or subject of the claim, to increase or decrease the amount of claims.

In accordance with paragraph 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 11, 2014 N 46 “On the application of legislation on state duty when considering cases in arbitration courts”, subparagraph 3 of paragraph 1 of the article, if the plaintiff reduces the amount of the claim, the amount of overpaid state duty is returned in the manner prescribed by article. In this case, it must be borne in mind that the state duty is returned only when the reduction in the amount of claims is accepted by the arbitration court (parts 1, 5 of article). The return of the state fee to the plaintiff may be indicated in the ruling, decision or resolution of the arbitration court.

In accordance with the rule enshrined in subparagraph 3 of paragraph 1 of the article, the paid state duty is not subject to refund if the defendant voluntarily satisfies the plaintiff’s demands after the latter applies to the arbitration court and a ruling is made to accept the statement of claim for proceedings.

Also, the amount of the state duty cannot be reduced in connection with the reduction of the penalty by the court.

According to para. 3 clause 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 22, 2011 N 81 “On some issues of application of an article of the Civil Code of the Russian Federation”, if the amount of the declared penalty is reduced by the arbitration court according to the rules of the article based on the application of the defendant, the plaintiff’s expenses for state duty are not are returned in part of the reduced amount from the budget and are subject to compensation by the defendant based on the amount of the penalty that would have been collected without taking into account its reduction.

In the situation under consideration, the plaintiff reduced the amount of the claim due to the defendant’s full payment of the principal amount. The reduction was accepted by the court.

Payment of part of the debt in the amount of 30,000 rubles. was made by the defendant before filing a claim in court (the date of filing the statement of claim with the court office is 03/02/2016) according to payment orders No. 295 dated 02/29/2016 in the amount of 20,000 rubles. and No. 320 dated 03/01/2016 in the amount of 10,000 rubles.

The remainder of the debt was paid by the defendant after filing a claim in court. In accordance with Art. The place of fulfillment of the obligation under the monetary obligation to pay non-cash funds is the location of the bank (its branch, division) servicing the creditor. In this connection, the plaintiff’s demands for payment of the debt were satisfied in full by the defendant on March 10, 2016.

In such circumstances, since in the case under consideration the plaintiff reduced the size of the claims, the reduction of claims was accepted by the court, the state duty, in connection with the partial payment of the amount of the debt before filing a claim in court, must be returned to the plaintiff from the Federal budget as overpaid, and the state duty in relation to the claims the plaintiff, satisfied by the defendant after filing the claim in court, is subject to recovery from the defendant in favor of the plaintiff.

Guided by the articles of the Arbitration Procedural Code of the Russian Federation, the arbitration court

DECIDED:

To recover from the Borisoglebsk District Consumer Society (TIN 7614000478, OGRN 1027601069418) in favor of the Limited Liability Company "Asha" (TIN 7604268557, OGRN 1147604016977) 12,684 rubles. 29 kopecks fines, 20,000 rub. to reimburse expenses for the services of a representative, RUB 6,654. for reimbursement of state duty expenses.

The rest of the claims for a penalty will be rejected.

The writ of execution shall be issued after the decision enters into legal force.

Refund to the plaintiff from the Federal budget the overpaid state duty in the amount of 715 rubles. 54 kopecks on the basis of Art. . Payment order No. 330 dated 03/01/2016 is on file.

The decision can be appealed by way of appeal to the Second Arbitration Court of Appeal within a month from the date of its adoption (making it in full), and from the date the decision enters into legal force - by cassation to the Arbitration Court of the Volga-Vyatka District within two months provided that it was the subject of consideration in an appellate arbitration court or the appellate court refused to restore the missed deadline for filing an appeal.

Judicial practice on the application of Art. 333 Civil Code of the Russian Federation

Petition to the arbitration court to reduce the amount of state duty

To the Arbitration Court ____________________

Applicant: ___________________________
(name/full name)
address: ______________________________,
phone fax: __________,
email mail: ___________________________

Case N _______________________________

Petition to reduce the amount of state duty
"__"___________ ____ the applicant appealed to the Arbitration Court _________
___________ with a claim against ____________________ about ______________________________
(defendant) (subject of claim)
(or: from ____________________ to __________________________________________).
In accordance with paragraphs. ____ clause 1 art. 333.21 of the Russian Tax Code
Federation state duty is ____ (________) rubles.
However, due to ________________________________________________
(circumstances worsening property
applicant's position)
the applicant’s financial situation does not allow him to pay the state
duty in the prescribed amount.
According to paragraph 2 of Art. 333.22 of the Tax Code of the Russian Federation, arbitration courts, based on the property status of the payer, have the right to reduce the amount of state duty payable in cases considered by these courts, or to defer (in installments) its payment in the manner prescribed by Article 333.41 of the Tax Code of the Russian Federation.
Based on the above and guided by paragraph 2 of Art. 333.22 of the Tax Code of the Russian Federation, clause 2, part 1, art. 126 of the Arbitration Procedural Code of the Russian Federation, the applicant requests a reduction in the amount of the state fee from _____ (__________) rubles to _____ (__________) rubles.

Applications:
1. Documents confirming circumstances worsening the applicant’s financial situation.
2. Power of attorney of the representative dated "__"___________ ____ city N _____ (if the application is signed by the applicant's representative).

"__"___________ ____ G.

Applicant
_______________________

Petition to the arbitration court for approval of a settlement agreement

To the Arbitration Court __________________ Claimant: _____________________________ ____________________________________ (name, location 1) Telephone ___________, fax _________, e-mail _____________________________
Respondent: __________________________ _____________________________________ (name, location or place of residence) Telephone ___________, fax _________, e-mail _____________________________
Case N ___________________________________

1 If the plaintiff is a citizen - his place of residence, the date and place of his birth, his place of work or the date and place of his state registration as an individual entrepreneur (clause 2, part 2, article 125 of the Arbitration Procedure Code of the Russian Federation).

MOTION for approval of the settlement agreement
The parties to the case ________________, in accordance with Art. Art. 138 - 140 of the Arbitration Procedure Code of the Russian Federation, agreed to conclude a settlement agreement for the settlement of the debt.
The defendant undertakes to the plaintiff to repay the debt in the amount of ________ rubles. in accordance with the following payment schedule:
________
________
In accordance with Art. Art. 141, 150 of the Arbitration Procedure Code of the Russian Federation, the parties ask the arbitration court to approve the settlement agreement on the above conditions and terminate the proceedings in this case.

Application
1. Powers of attorney or other documents confirming authority to sign the application.

FULL NAME. individual entrepreneur (plaintiff) ____________________
Signature stamp

"___" ________ _____ G.

Manager (representative) or
FULL NAME. individual entrepreneur (defendant) ____________________
Signature stamp

"___" ________ _____ G.

Source - "How to submit documents to the arbitration court: Educational and practical guide", "Prospectus"

Petition to the arbitration court for participation in a court hearing through the use of video conferencing systems

In _________________________ arbitration court

Applicant: ________________________________
(full name or name)
address: ____________________________________
__________________________________________,
(for an entrepreneur: date and place of birth,
place of work or date and place
state registration
as an entrepreneur)

Representative of the applicant: __________________
(data taking into account Article 59 of the Arbitration Procedure Code of the Russian Federation)

phone fax: ____________,
email mail: ________________________________

Interested party: ____________________
(Full name or
Name)
address: ___________________________________,
phone fax: ____________,
email mail: ________________________________

Application for participation in a court hearing through the use of video conferencing systems
"___"________ ___ the plaintiff filed a claim against the defendant for ______________
__________________________________.
(subject of dispute)
The hearing of the case is scheduled for ___ hours ___ minutes "___"__________ ____.
The applicant cannot attend the court hearing due to ___________________, which is confirmed by ____________________. At the same time, the Applicant has the technical capabilities to participate in the court hearing via video conferencing (if necessary: ​​with the assistance of the _______________ arbitration court).
According to paragraph 24 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 02/17/2011 N 12 “On some issues of application of the Arbitration Procedural Code of the Russian Federation as amended by the Federal Law dated 07/27/2010 N 228-FZ “On Amendments to the Arbitration Procedural Code of the Russian Federation” and in accordance from Part 1 of Article 153.1 of the Arbitration Procedural Code of the Russian Federation, persons participating in the case and other participants in the arbitration process may take part in the court hearing by using video conferencing systems, subject to their filing a request for this and if available in the relevant arbitration courts technical feasibility of video conferencing.
Based on the above and guided by Part 1 of Art. 153.1 of the Arbitration Procedural Code of the Russian Federation, paragraph 24 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 02/17/2011 N 12 “On some issues of application of the Arbitration Procedural Code of the Russian Federation as amended by the Federal Law dated 07/27/2010 N 228-FZ “On Amendments to the Arbitration Procedural Code of the Russian Federation” Federation", I apply to participate in the court hearing through the use of video conferencing systems.

Application:
1. Documents confirming that the applicant cannot attend the court hearing.
2. Power of attorney to sign the application (if the application is signed by a representative).

"__"___________ ____ G.

Applicant (representative)
_________________________
(signature)

Judge of the Arbitration Court of the Irkutsk Region T.G. Soroka,

when keeping the minutes by the secretary of the court session A.V. Khazimullina,

having considered in court the complaint of individual entrepreneur Kryukov

Igor Nikolaevich on the actions of the bankruptcy manager of JSC PC "Diteko" Timashkov

Viktor Anatolyevich

in the case of recognition of a closed joint stock company Manufacturing company

"Diteko" (OGRN 1023801541763, INN 3811065597, address: 665854, Irkutsk region,

Angarsk district, Novosibirsk-Irkutsk highway 1855 km, building 5) insolvent

(bankrupt)

when participating in a court hearing:

representative of the bankruptcy trustee: Yu.V. Rybachenok, by power of attorney, passport,

representative of the bankruptcy creditor (JSC JSCB International Financial Club):

Demidova V.S., by power of attorney, passport,

representative of the applicant: Halmakshinova E.S., by power of attorney, passport,

representative of the Office of the Federal State Registration Service, Cadastre

and cartography in the Irkutsk region: Bocharova N.M., by proxy, passport,

Installed:

By the decision of the Arbitration Court of the Irkutsk Region dated 05.05.2017 regarding

JSC PC "Diteko" has opened bankruptcy proceedings, the bankruptcy manager

the debtor was approved by the arbitration manager Viktor Anatolyevich Timashkov.

By definition of the Arbitration Court of the Irkutsk Region dated January 29, 2019

bankruptcy proceedings in relation to JSC PC "Diteko" and the powers of the bankruptcy

Managing Director of JSC PC "Diteko" Timashkova V.A. extended until July 22, 2019.

Lender of JSC PC "Diteko" for current payments - individual

entrepreneur Igor Nikolaevich Kryukov appealed to the Arbitration Court of Irkutsk

region with a complaint in which he asked to recognize the actions of the bankruptcy court as improper

Viktor Anatolyevich Timashkov, Managing Director of JSC PC "Diteko" for repayment

included in the register of claims of second-priority creditors in the amount of RUB 40,071,179.50.

in the presence of outstanding current requirements, believing that the specified actions

bankruptcy trustee are a violation of Article 134 of the Federal Law dated

current payments to appeal the actions or inaction of the arbitration manager to

arbitration court considering a bankruptcy case, if such actions or

inaction violates their rights and legitimate interests.

According to paragraph 3 of the resolution of the Plenum of the Supreme Arbitration Court

Russian Federation dated July 23, 2009 No. 60 “On some issues related to

adoption of Federal Law No. 296-FZ dated December 30, 2008 “On Amendments to

Federal Law “On Insolvency (Bankruptcy)” creditors under current

payments has the right to participate in the arbitration process in a bankruptcy case by

appeals against actions or inactions of the arbitration manager that violate them

rights and legitimate interests (clause 4 of article 5, paragraph four of clause 2 and clause 3 of article

35 of the Bankruptcy Law).

The complaint is subject to consideration on the merits in the bankruptcy case of PK JSC

Bankruptcy Law, according to which:

First of all, requirements for current payments related to

legal expenses in the bankruptcy case, payment of remuneration to the arbitration tribunal

manager, collection of debts on payment of remuneration to persons,

acting as an arbitration manager in a bankruptcy case, the requirements

for current payments related to payment for the activities of persons whose involvement

arbitration manager to perform the duties assigned to him in the case of

bankruptcy in accordance with this Federal Law is mandatory, in

including collection of debts related to payment for the activities of these persons;

secondly, the requirements for remuneration of persons working

or who worked (after the date of acceptance of the application for declaring the debtor bankrupt) under

employment contract, requirements for payment of severance pay;

thirdly, demands for payment for the activities of persons are satisfied,

attracted by the arbitration manager to ensure the fulfillment of the duties assigned to

his responsibilities in a bankruptcy case, including debt collection

payment for the activities of these persons, with the exception of the persons specified in paragraph two

this paragraph;

fourthly, requirements for operating payments are satisfied

(utility payments, payments under energy supply contracts and other similar

payments);

fifthly, requirements for other current payments are satisfied.

Claims of creditors for current payments related to one queue,

are satisfied in calendar order.

Indeed, by virtue of the provisions of Article 134 of the Bankruptcy Law, the current

payments are due earlier than those included in the register of creditors' claims

debtor.

At the same time, the distribution of funds received from sales

subject of pledge, is regulated by a special norm - Article 138 of the Law on

bankruptcy, which does not provide for the possibility of repaying current payments for

excluding legal costs, remuneration of the arbitration manager and

attracted specialists.

Requirement of individual entrepreneur I.N. Kryukov, based on the merits

obligations (provision of transportation services) in accordance with Article 134 of the Bankruptcy Law

refers to the fifth stage of current payments and is not subject to satisfaction at the expense of

funds received from the sale of collateral property.

Taking into account the above, in satisfying the complaint of the creditor of JSC PC "Diteko"

current payments of individual entrepreneur I.N. Kryukova should be refused.

Guided by the article of the Federal Law of October 26, 2002 No. 127-FZ “On

insolvency (bankruptcy)", Arbitration procedural

Code of the Russian Federation, Arbitration Court,

Defined:

In satisfying the complaint of individual entrepreneur Igor Kryukov

Nikolaevich to refuse.

The determination can be appealed to the Fourth Arbitration Appeal

court through the Arbitration Court of the Irkutsk Region within ten days from the date of its

rendering

Judge T.G. Magpie

In a bankruptcy case

city ​​of Kemerovo Case No. A27-2710-13/2018

Arbitration Court of the Kemerovo Region composed of Judge O.V. Vinogradova,

when keeping minutes of a court hearing using audio recording devices

secretary of the court session T.L. Pykhtina,

with participation in the court hearing: representative of Sberbank PJSC Polyakova E.E.

(power of attorney dated March 10, 019, passport),

having considered in open court the petition of the debtor-citizen for

exclusion of property from the bankruptcy estate in an insolvency (bankruptcy) case

Lomovskikh Evgeniy Evgenievich (TIN 422100460898, SNILS 059-043-897-8; 654034,

Novokuznetsk city, Lenina street, building 78, apartment 71)

Installed:

a procedure for the sale of property has been introduced, the financial manager has approved

Nesterov Maxim Nikolaevich. The specified information was published in the newspaper

debtor-citizen (applicant) for exclusion of funds from the bankruptcy estate

funds in the amount of 75,000 rubles located in the bank account of the debtor No.

40817810526170015319 in branch No. 8615 of the public joint stock company

"Sberbank of Russia", Kemerovo.

With the said determination, they were requested from public office No. 8615

joint stock company "Sberbank of Russia" (hereinafter - PJSC Sberbank, bank) agreement on

opening an account No. 40817810526170015319, confirming the overdraft; application form

to open account No. 40817810526170015319 (if available); current account statement

No. 40817810526170015319, confirming use or non-use

cash data; other documents confirming that the 75,000

rubles in bank account No. 40817810526170015319 are bank funds;

information about the inclusion of these funds in the register of creditors’ claims,

The court issued a ruling to re-submit the above documents.

meeting to consider the issue of imposing a fine in relation to public

Joint Stock Company "Sberbank of Russia" (PJSC Sberbank; TIN 7707083893, OGRN

1027700132195) and collection into the income of the federal budget of the Russian Federation

fine for failure to provide the documents requested by the Arbitration Court of the Kemerovo Region

evidence.

documents required by the court have been received.

At the court hearing, a representative of Sberbank PJSC objected regarding

satisfying the debtor’s application, explained that the debt on disputed

funds are included in the register of creditors' claims.

After hearing the creditor's representative, examining and assessing the circumstances and

the case materials, the evidence presented, the court came to the following conclusions.

Financial manager, debtor, other persons participating in the case,

duly notified of the time and place of the court hearing did not appear,

the attendance of authorized representatives at the court hearing was not ensured. The court is fine

Article 156 of the Arbitration Procedure Code of the Russian Federation determined to hold a court hearing in the absence of those who did not appear

Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), cases of

bankruptcy of legal entities and citizens, including individual

entrepreneurs are considered by the arbitration court according to the rules provided for

Arbitration Procedure Code of the Russian Federation, with the features established by the Bankruptcy Law.

Relations related to the bankruptcy of citizens are regulated by the provisions of Chapter

X Bankruptcy Law; relations related to bankruptcy of citizens and not

regulated by Chapter X, regulated by Chapters I - III.1, VII, VIII, paragraph 7 of Chapter

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The court reduced the penalty, what will happen to the state duty and legal expenses
Despite the rather long period of practice of courts applying Art. 333 of the Civil Code of the Russian Federation, until now, when considering cases in courts of general jurisdiction, there has not been a uniform approach to resolving this issue. Particularly troubling is the practice when the court, while reducing the amount of the collected penalty, decides to distribute legal costs accordingly. This also applies to expenses, for example, for examination and paid state duty. Yes, formally the court, by reducing the amount of the penalty by its decision, reduced the proportions of satisfied claims. Based on this, many judges do not go into details and simply apply Art. 98 of the Code of Civil Procedure of the Russian Federation, which establishes that if the claim is partially satisfied, the legal costs specified in this article are awarded to the plaintiff in proportion to the amount of the claims satisfied by the court, and to the defendant in proportion to the part of the claims that were denied to the plaintiff. In our opinion, this practice is incorrect; in this case, the plaintiff suffers unreasonable property losses, since he loses part of the penalty that the court reduced, and is also forced to bear part of the legal costs.
The situation is a little better in the system of arbitration courts. Resolving the issue of distribution of legal costs in the event that the court reduces the penalty on the basis of Art. 333 of the Civil Code of the Russian Federation is devoted to several paragraphs of Resolution No. 81 of December 22, 2011 “On some issues of application of Article 333 of the Civil Code of the Russian Federation” of the Plenum of the Supreme Arbitration Court of the Russian Federation.
In particular, they say - When considering the distribution between the parties of the costs of paying the state duty in cases of reducing the amount of the penalty to be collected, arbitration courts must take into account that, in accordance with subparagraph 2 of paragraph 1 of Article 333.22 of the Tax Code of the Russian Federation, the price of the claim includes those specified in the statement of claim amounts of penalties (fines, penalties) and interest.
If the plaintiff has reduced the amount of the claim for the collection of a penalty, the overpaid state duty is returned to the plaintiff by the Federal Treasury as paid in an amount greater than provided by law (subclause 3 of clause 1 of Article 333.22 of the Tax Code of the Russian Federation).
If the amount of the declared penalty is reduced by the arbitration court according to the rules of Article 333 of the Civil Code of the Russian Federation on the basis of the defendant’s application, the plaintiff’s expenses for the state duty are not returned in part of the reduced amount from the budget and are subject to compensation by the defendant based on the amount of the penalty that would have been collected without taking into account its reduction.
In cases where the plaintiff is exempt from paying the state duty, the corresponding amount of the state duty is recovered from the defendant in proportion to the amount of the penalty reduced by the court (Part 3 of Article PO of the Arbitration Procedure Code of the Russian Federation).