Учет публичного интереса как критерий справедливости договорных условий (на примере проблематики банковских сделок)

Вестник Университета имени О.Е. Кутафина. 2023. № 1. С. 32–41.

Vishnevskiy A.

The article (considering as an example the banking transactions, mostly bank deposit) provides for necessity to take into consideration the public interest while considering the terms and conditions of the contract as fair or unfair. According to the author, the fairness of the terms and conditions of the contract cannot be assessed just when taking into consideration of the interests of one of the parties vis-a-vis the other party to the contract - as far as the banking transaction of a dual nature, both civil law contract and banking product, the fairness is to be considered in the light of the interests of the banking system as a whole, as far as banking transaction cannot exist without such a system, therefore the contract term cannot be considered as fair if it provides for the best protection if the consumer interests but ignores the interest of the banking system. In turn, the interests of the banking system are public by its nature, and the article touches upon the fundamentals of counteractions of the private and public interests stressing the necessity to reconsider the traditional approach to the “division” between the public and private law.

Keywords: принцип справедливости, consumer protection in financial services, защита потребителя финансовых услуг, банковско-клиентские отношения, unfair contract terms, principle of equity, banker-customer relations, несправедливые условия договора