О снижении судебной неустойки

Вестник экономического правосудия Российской Федерации. 2018. № 12. С. 4–13.

Erokhova M.

The author analyzes the Decree of the Supreme Court of the Russian Federation, which canceled the decision of the court of cassation on refusal to reduce the judicial penalty, and the case was forwarded for a new consideration. The author believes that the Supreme Court spoke in favor of lowering the court penalty, but not according to art. 333 of the Civil Code of the Russian Federation as disproportionate to the consequences of non-performance of an obligation, but as disproportionate to something else that the court did not directly name. Most likely there was a view to reducing the judicial penalty as disproportionate to the non-execution of the court’s decision in time. The author expresses his opinion about the possibility of reducing the penalty by applying, by analogy, art. 333 of the Civil Code. The author believes that the lack of a mechanism to reduce the judicial penalty stops the judges from awarding large sums of fines that could affect the will of the debtor.

In addition, in the Decree of the Supreme Court of the Russian Federation, a position is expressed on the effect of the decisions of the Plenum in time: it must apply the decision that is valid at the time of the award of the judicial penalty. The author agrees with this position with regard to the court penalty, but believes that it is dangerous for other substantive law issues: people relied on the interpretation of the law as proposed by the decision of the Plenum, but the court can apply the interpretation from new Plenum. This leads to the unpredictability of court decisions.

 

Keywords: неустойка, legal penalty