The court did not take into account the beliefs of the Bashkir car enthusiast. Legal life hack. How to ensure that the court pays attention to the legal position set out in a separate court decision of the Supreme Court of the Russian Federation Lack of proof of significant circumstances for the case

Judge Murzagalieva A.Z. case No. 33-8629/2015

APPEAL DECISION

Judicial panel for civil cases Sverdlovsk Regional Court composed of: presiding Romanov B.V., judges Zvyagintseva L.V. and Voloshkova I.A. when keeping the minutes by assistant judge Sorokin A.S.

considered in open court on June 18, 2015 a civil case on the claim of (/ /)1, (/ /)2 to (/ /)3, (/ /)4 for recovery of damage caused as a result of flooding of the apartment, compensation for moral damage, legal expenses

on the appeals of defendants (/ /) and (/ /)7 against the decision of the Verkh-Isetsky District Court... dated 02/25/2015.

Having heard the report of judge L.M. Zvyagintseva, the explanations of the defendant (/ /)7, who also represents the interests of the defendant (/ /)3 on the basis of a notarized power of attorney from (/ /) ...0, who supported the arguments appeals, objections of plaintiffs (/ /)1 and (/ /)2, as well as a third party (/ /)11, who asked to leave the court decision unchanged, judicial panel

installed:

by decision of the Verkh-Isetsky District Court of Yekaterinburg dated February 25, 2015, claim (/ /)1 and (/ /)2 to (/ /)7, (/ /)3, (/ /)4 for recovery of damage caused as a result flooding of the apartment, compensation for moral damage, costs of paying for the services of the appraiser were partially satisfied.

Collected jointly and severally with (/ /)7 and (/ /)3 in favor of the plaintiffs for damages (/ /) costs of paying for the services of an appraiser - (/ /)

From (/ /)7 and (/ /)3 in favor of (/ /)2 the costs of state duty in the amount of (/ /) were recovered. from each defendant.

The claim against (/ /)7 and (/ /)3 for moral damages was rejected.

The claim against (/ /)4 was rejected in full.

Disagreeing with the said court decision, defendants (/ /)7 and (/ /)3 filed appeals.

In the appeal, the defendant (/ /)3 asks to cancel the appealed decision and make a new decision in the case to reject the claim, citing an incorrect determination of the circumstances relevant to the case and the discrepancy between the court’s conclusions and the evidence presented.

Believes that the court satisfied the claim without finding out the reasons for the leak, considering the defendants to be at fault for causing damage (damage to the plaintiffs’ apartment) on the basis of the totality of evidence, namely: on the basis of the act presented by the plaintiffs from (/ /) and the testimony of a witness (/ /)8 o cohabitation of the defendants in the apartment from where the flooding of the apartment occurred; a report assessing the cost of damage caused by the defendants based on the results of an inspection by a specialist appraiser from (/ /) which was accepted by the court due to the defendants’ failure to provide evidence of a different cause of flooding and evidence of a different amount of damage.

Challenging the court's conclusions set out in the decision, the defendant (/ /)3 refers to violations of the rules of procedural law committed by the court, expressed in the fact that the court did not explain to him his procedural rights, including the presentation of evidence, the filing of motions, and did not propose in order objections to the claim, order a re-examination to determine the amount of damage, and conclude a settlement agreement.

The descriptive part of the court decision does not contain any indication of the defendant’s objections, attached to the case materials, which he presented at the court hearing, did not give proper legal assessment evidence relied on by the defendant in his objections. Therefore, he believes that the court showed a biased attitude towards the defendants and examined this case incompletely and biasedly. The court decision does not provide the reasons why some evidence was accepted and others were rejected, as required by Art. . To assess the reliability of the testimony of witness (/ /)8 about the cohabitation of the defendants, the court did not compare them with other evidence, ignoring the evidence presented by the defendant about the impossibility of cohabitation of the spouses, including medical certificates and an agreement social hiring, from which it follows that (/ /)3 needs outside care, such a caregiver is (/ /)9, and the wife with whom (/ /)3 married after receiving a warrant and moving into... ., naturally, comes more often to his daughter and other relatives, brings food, prepares food, cleans the apartment, but constantly lives in his own... However, the court, in fact, limited itself to only the testimony of a witness, which it considered reliable confirmation of the fact that the spouses lived together in apartment and being (/ /)7 in the apartment at the time of the leak.

The court did not take into account the explanations of the defendant (/ /)10 about the unintentional nature of his inaction, since as a result of the strong pressure of water, the tap on the water filter was torn off, and the defendant, due to the trembling of his limbs caused by the disease, could not cope with the tap and close it in time, I slipped and couldn’t get up until my wife arrived. However, this fact was not the subject forensic research, the court applied joint and several liability to the defendants, although, in the opinion of (/ /)3, the court’s reference to Art. is untenable, since only the common debt (obligations) of the spouses, their guilty actions can be a consequence of the joint infliction of harm to other persons, for which the spouses are jointly and severally liable to the victim.

Since it took a short time from the time the leak occurred until it was eliminated, the leak could not have caused a flood to the extent indicated by the plaintiffs, and the amount of damage was equal to the cost of a complete cosmetic renovation of the apartment. The plaintiffs presented to the court the Bay Act, drawn up on the third day after the accident, accepted by the court as evidence of damage to the plaintiffs’ property, without taking into account that the act was drawn up in the absence of the defendant and without his signature, although the plaintiffs had the opportunity, when drawing up the act, to invite the defendant, who was constantly at home for health reasons.

The actions of the drafters of the act, who were not questioned in court, in the opinion of the author of the complaint, indicate a violation of the procedure, and therefore, by virtue of Art. do not meet the admissibility criterion, which the court did not take into account, although the defendants challenged this act. However, the court did not bring up for discussion between the parties the issue of ordering a re-examination in accordance with Art. , citing in the decision that the defendants did not provide evidence of a different amount of damage, although the court itself should have ordered such an examination, taking into account the need for special knowledge to determine the amount of damage.

Relying when making a decision on the report of a specialist appraiser from (/ /) as evidence of the actual amount of necessary expenses, the court did not evaluate and treated the results of this report with extreme confidence, accepting it as unconditional and reliable evidence of damage caused by the defendants, although the expert’s conclusion was not may have predetermined force, must be assessed along with other evidence. The appraiser's findings are probable because one appraiser costs painting the walls (/ /) This is not an expert approach, so no judge should accept such reports as evidence. In addition, according to the author of the complaint, the report of the appraiser presented to the court does not meet the requirements regulatory documents, does not contain conclusions about the basis on which actual damage as a result of soaking was identified; the qualifications of the specialist appraiser who assessed the damage are not indicated, whom the author of the complaint considers to be an amateur who does not understand the technology of construction and, in particular, finishing works, since when drawing up the report he relied mainly on information received from the customer, without taking measurements, who carried out calculation of the size of premises based on the cadastral plan of the premises, which is not enough to calculate the areas of walls, window and door openings. As a result of the failure of the appraiser to carry out measuring work, the areas of the ceiling and walls turned out to be overestimated, the calculation of materials necessary for repairs was overestimated, the same prices were taken for different types works (dismantling and installation), the calculation of the cost of repairs includes painting the walls without replacing wallpaper, and another clause includes the operation of clearing the walls of old paint and sanding them, although why you need to sand paper wallpaper and then paint it is unclear.

Restoration repairs after flooding are aimed at bringing the premises to their previous state and for the new finishing materials must be used that are similar in consumer properties to those that were previously used for finishing (the same type, quality, price range, etc.), the Court ignored the fact that the report was drawn up without indicating the old finishing of the premises, based on the inspection report dated October 15, 2014, in which the features and level of finishing of the premises before the flood were not determined, since the indication that the floor was laminate and the walls were for painting is not enough to bring the appearance of an apartment damaged by the flood to the condition that preceded the damage. The court did not pay attention to the inclusion in the calculation of some of the most expensive and high-quality finishing materials, which does not exclude the unjust enrichment of the plaintiffs. Therefore, he considers it unproven and contrary to the requirements of Art. and the amount of damage, since the calculation of the cost of damage presented in the appraiser’s report does not reflect the actual cost refurbishment the plaintiffs' residential premises damaged as a result of the flooding of the apartment.

When making a decision, the court did not apply the law to be applied, namely: the norms of paragraph 3 of Art. to reduce the amount of compensation for damage, taking into account the fact that the spill was caused by negligence, as well as the financial situation (/ /)10, to which the defendant referred in his objections, attaching to them a certificate from the pension authority about the presence of disability and a small amount of pension, from which half of the amount is spent on medicines, rehabilitation equipment, calling doctors to your home, paying for care, and rent.

The appeal filed a petition for the admission of additional evidence: a clarifying certificate from the UPFR dated March 12, 2015, comments on the calculation of the cost of restoration repairs, which confirm the arguments of the complaint, since the defendant could not present them to the court of first instance due to the inability to attend the court hearing for health reasons.

The appeal of the defendant (/ /)7 indicated as grounds for canceling the court decision the violation by the court of the rules of substantive and procedural law, the lack of proof of circumstances relevant to the case, the discrepancy between the court’s conclusions and the actual circumstances of the case, which was expressed, in the opinion of this defendant, in the following: in the introductory part, complete information about the parties involved in the case is not indicated (the defendant (/ /)7 and the third party (/ /)11 are not indicated); in the descriptive part of the decision, contrary to the evidence presented, it is indicated that the co-defendant (/ /)4 is the owner (/ /) of a share in the ownership of... in...; the content of the objections presented by the defendant (/ /)3 in his response with the evidence attached to them is not given, to which the court did not give any analysis, which indicates a poor-quality and formal approach of the court to the materials available in the case.

When presenting the claims in the descriptive part of the decision, the court indicated that the basis for filing a claim was the defendants’ failure to comply with the agreement on timely payment by them to repay the amount of damage, according to which payment of the amount of damage was provided in full (/ /) Having accepted the statement of claim (/ /) that is, before the expiration of the specified debt repayment period, the court did not attach importance to this fact. At the same time, the plaintiffs did not attach to the statement of claim either the agreement referred to in the lawsuit, or evidence confirming the defendants’ refusal to repay the debt.

In the appeal, defendant (/ /)7, like defendant (/ /)3, refers to the fact that (/ /) is inadmissible evidence, since it was compiled without prior notification of the defendants about the inspection of the apartment and familiarization with the results of the assessment, which did not give the defendants the opportunity to challenge the report and order another independent examination before the start of the trial; and the act from (/ /) is based only on the assumption of guilt (/ /)7 in causing the damage, and her objections about the absence of guilt, challenging the act and the report on the amount of damage were ignored by the court. However, the court did not serve the defendant with a copy statement of claim, nor copies of other documents attached to the statement of claim, which the defendant read only in court, prepared her objections to them, and presented them to the court. At the last court hearing (/ /), the plaintiffs presented additional evidence, but the court did not provide an opportunity to familiarize themselves with it and did not explain the right to ask the court to postpone the court hearing, which deprived her of the opportunity to provide evidence of her residence in another apartment and a certificate from the pension authority that , that care for (/ /)3 is carried out by (/ /)9

The court decision indicated that the plaintiffs’ daughter (/ /)11, who actually lives in the plaintiffs’ apartment, should be involved in the case as a third party; it was her testimony that the court took into account, although she is an interested party.

All the evidence referred to by the court to confirm the guilt of the defendant (/ /)7 is probabilistic, and the receipts presented by the plaintiffs as evidence of admission of guilt (/ /)7, issued in the name of (/ /)12, whom the court did not involve in participation in the case, were drawn up under his dictation, under the threat of “dragged through the courts and sent around the world as a beggar,” and one receipt indicated damage caused due to the fault of (/ /)3, in the other – due to the fault of (/ /)7, which was the basis for the court to find both defendant spouses guilty of causing damage, despite the fact that admission of guilt, especially under the influence of threats and delusions, cannot be evidence, since guilt must be proven by the court.

The court found it established that defendant (/ /)4 does not live in the apartment, but that defendants (/ /)3 and (/ /)7 actually live, own and use this apartment; the court made this conclusion solely on the basis of the testimony of a witness (/ / )8, questioned at the request of the defendant (/ /)7 However, the court treated the witness’s testimony with extreme confidence, not taking into account the objection (/ /)7 that she permanently resides at a different address - in... in... , of which he is the owner, is registered there and makes payments for the provided utilities, and therefore it is impossible for her to live in... together with (/ /)3, who is a disabled person of the first group, suffering from a severe form of a chronic disease, and therefore it is impossible to live together with him in the same apartment. It was for this reason that he was provided with a separate apartment under a social tenancy agreement, about which relevant evidence was presented to the court. Due to poor movement of (/ /)3 around the apartment, both (/ /)7 and daughter (/ /)4 have a key to his apartment, as well as (/ /)9, who is registered for the care of (/ /)3

The court deliberately selected from the witness's testimony only those where she states that the neighbors live together, while ignoring the testimony of the same witness that (/ /)7 came to... after the bay, but the court found the defendants joint and several persons who jointly caused harm by applying Art. , although by virtue of Art. had to determine whose actions caused the flooding of the plaintiffs’ apartment and whether the person was guilty of committing them.

According to the defendant (/ /)7, her guilt in causing the damage has not been proven; she cannot be jointly and severally liable with her husband, since this contradicts the provisions of Art. , and the provisions of Art. should not be applied to this situation at all, since the spouses did not commit any joint actions.

In the appeal, the defendant (/ /)7 also filed a motion to accept as additional evidence to confirm the fact of her residence and registration in another apartment, and not together with (/ /)3, following documents: certificate (/ /)", certificate of registration (/ /)3, notification of the Unified Center for payment of utility bills for (/ /) notification of recalculation of the subsidy amount

By the ruling of the judge of the Sverdlovsk Regional Court from (/ /) the consideration of the case on the appeals of the defendants Koltyapin G.S. and (/ /)7 scheduled for 06/18/2015, of which all participants in the process were duly notified.

At the court hearing appellate court the participants in the process did not object to the consideration of the case in the absence of the defendant (/ /)3, who issued a power of attorney to his wife (/ /)7 to represent his interests, and therefore the judicial panel, guided by Article , decided to consider the case at this appearance.

At the hearing of the appellate court, the defendant (/ /)7 supported the arguments of the appeals and the petitions stated in them for the admission of additional evidence.

Plaintiffs (/ /)1 and (/ /)13 did not object to the admission of additional evidence; they filed a motion to add their written objections to the appeal to the case materials, to which the defendant (/ /)7 did not object

The panel of judges, guided by Art. - , attached written objections of the plaintiffs, and also taking into account the opinion of the parties that the defendants referred to these circumstances in the court of first instance, the new evidence presented actually confirms the previously presented arguments, granted the stated requests for the acceptance of documents attached to the complaints: certificates of the Frunze Homeowners Association , 43"; apartment card; rent receipts; notifications about recalculation of the subsidy amount.

The defendant (/ /)7 at the court hearing of the appellate court supported the arguments of the appeals, asked them to satisfy them, and to cancel the decision of the court of first instance, considering that her guilt in causing damage had not been proven and not established by the court, since the receipts that she gave were not are proof of her guilt. The soaking was caused by her husband, not by her. She was not in the apartment. This has not been proven by the plaintiffs. At the same time, she did not dispute her husband’s guilt, since he did not renounce his guilt, but asked to take into account his financial level, as well as the fact that they had already paid part of the money for the damage. They cannot afford to continue paying (/ /) monthly.

When asked by the court whether (/ /)7 is married to (/ /)3 and since when, whether she lives with him in..., where her neighbors constantly see her, and why she claims that she is just coming to to his apartment for care, answered that she had been married to him since (/ /) year, but did not live in this apartment, she had her own apartment on..., the marriage was conditionally registered to make it easier for her to decide questions for him.

When asked to clarify what she meant by a conditional marriage, whether the marriage was fictitious, she replied that she did not think so, they had a common adult daughter ((/ /)3).

When asked how to understand her actions to pay (/ /) in compensation for damages, she answered that she voluntarily paid them (/ /) and compensated the plaintiffs for (/ /). two months in a row ((/ /) for the guilty actions of her husband, despite the fact that she herself did not live in the disputed apartment.

Plaintiffs (/ /)1 and (/ /)13 supported their written objections to the appeal, considering the decision of the trial court to be legal and reasonable, correct on the merits, since defendant (/ /)7 is married to (/ /)3, she takes care of her sick husband, lives with him, and visits the apartment every day. Although she and (/ /)3 do not have any joint contractual obligations to the plaintiffs, they believe that both spouses should compensate for the damage.

The plaintiffs themselves were not in the apartment at the time of its flooding; the plaintiffs received a call from neighbors on the first floor who thought that the plaintiffs were drowning them, but it turned out that the leak occurred from the defendants’ apartment to the first floor. They learned from the neighbors that (/ /)7 was also in the apartment at the time of the flooding, the neighbors saw both spouses in the apartment at that moment, the defendant was there when the flooding occurred, because the neighbors came and saw her there.

The witness correctly said that the defendant was in..., and there was no one in the plaintiffs’ apartment during the flooding, the plaintiffs received a call that they were flooded. The witness was questioned by the court, and the witness's testimony was correctly reflected in the court's decision. In addition to the witness whose testimony is disputed by the defendants, there are other witnesses in other apartments who saw both spouses, their explanations are available in the case file. It is believed that the arguments of the complaints that (/ /)7 has another apartment on Frunze do not refute the conclusions of the court. When the plaintiffs arrive home, they see that the defendant (/ /)7 is always in this apartment.

The third party (/ /)11 supported the plaintiffs’ objections, considering the court’s decision legal and justified, and the arguments of the appeals as untenable, since (/ /)11 learned about the fact of flooding of the apartment from neighbors who said that they were flooded from the plaintiffs’ apartment. Several apartments were damaged. Defendant (/ /)7 has been constantly living in the apartment since (/ /) a year, and was there at the time of the flooding, which was confirmed not only by witness Poplavskaya, but also by other neighbors. The defendant provided a certificate stating that she had been living since ... (/ /) year, but the defendants’ daughter did not confirm this; they gave different testimony. The certificate was prepared on the basis of a registration card, which confirms only the fact of registration in the apartment and payment for it, and not the fact of permanent residence itself. The plaintiffs did not want to bring the case to court, they offered the defendants an installment plan, they paid the cost of the assessment themselves, they suggested that the defendants reduce the amount of damage from (/ /). The defendants agreed to an installment plan based on (/ /). monthly. At first, the defendant paid, the money was sometimes accepted by her husband (/ /)11 At the last moment, when (/ /)7 saw that they were making suspended ceilings in the apartment, she refused to continue paying for the damage, deciding that the plaintiffs would not prove anything. In fact, (/ /)7 paid only (/ /) rubles, then said that for (/ /) rubles. It will be difficult for her to pay. In court, the plaintiffs proposed to go to settlement agreement, even (//) offered the defendants an installment plan, but they did not want to resolve the issue amicably. Believes that the court made the right decision.

Having studied the case materials, having discussed the arguments of the appeals (/ /)3 and (/ /)7, supported by the defendant (/ /)7 at the hearing of the appellate court, the plaintiffs’ objections (/ /)1, (/ /)13, supported by the third person (/ /)11, who considered the court’s decision to be legal and justified, essentially correct, the judicial panel comes to the following conclusion.

The court established and confirmed by the case materials that plaintiffs (/ /)1 and (/ /)13 are the owners of residential premises located at the address: ....

As follows from the content of the statement of claim and the explanations of the plaintiffs and a third party in court hearings, (/ /) the entire apartment of the plaintiffs was flooded (with the exception of the farthest dressing room) from the one above..., which is reflected in the act dated May 10, 2014, when drawing up which was attended by (/ /)7, who signed for her husband, which can be confirmed by an employee of the management company.

The fact that (/ /)7 was present during the drawing up of the act and signed for (/ /)3 in the act was not disputed by her in court hearings, no petition was filed for the appointment of a handwriting examination to establish the signature in the act, the procedure for drawing up the act itself and its the contents, including the reasons for the flooding of the plaintiffs’ apartment indicated in it, were not questioned, nor was the volume of flooding; the defendants did not ask for a summons to court and interrogation of the persons who signed the act; the circumstances under which the flooding occurred were established at the court hearing, in connection with which the arguments of the complaint (/ /)3 about an insignificant leak in comparison with how it is reflected in the act and the report on assessing the amount of damage, the invalidity of the act on the basis that the defendants were absent when drawing up the act, (/ /)3 are not invited, although he is always at home, the signature on the act was forged (/ /)3, and a third party signed for the plaintiffs (/ /)11, the content of the act does not meet the requirements regulatory requirements, is probabilistic in nature, does not meet the requirements for admissibility and relevance - contradict the case materials and the factual circumstances established by the court, are based on a subjective interpretation of Art. .

According to the plaintiffs’ explanations, they themselves live in..., their daughter (/ /)11 and her husband live in the apartment, who, like the plaintiffs, were not in the apartment at the time of the flooding; their neighbors, as well as the plaintiffs themselves, called them by phone from below, who thought that the flooding came from the plaintiffs' apartment.

According to the local estimate from (/ /), the estimated cost of damage was (/ /) According to the plaintiffs’ explanations, the calculation did not include repairs to the hallway, since her son-in-law (/ /)7, who came with her to the plaintiffs’ apartment to inspect the consequences of the leak, repaired damage in the hallway. After the flooding (/ /), the parties agreed on the amount of damages - (/ /) with payment in installments until the end (/ /) taking into account the financial situation of the defendants. At the same time, the parties agreed that they would not engage an expert to draw up a damage assessment report in order to avoid the cost of paying for his services. By agreement with (/ /)7 on voluntary compensation for damage in installments, she drew up a receipt, in accordance with which she undertook to pay an amount in the amount of (/ /). by paying (/ /), the rest of the amount - in equal parts (/ /) monthly, up to (/ /) a year. On the day of writing the receipt (/ /)7 she brought with her young man, whom she introduced as an expert. He explained that he was her son-in-law, took photographs of everything, and she herself was present during the inspection (/ /)7 The plaintiffs began repairs. However, the defendant (/ /)7, having paid (/ /), stated that she would not be able to pay any more damages for (/ /) and the defendants did not contribute any more money to compensate for the damage caused. When the plaintiffs contacted the defendant, they received a response refusing further compensation for damage.

The arguments of the defendant's appeal (/ /)7 that she was forced to write a receipt contradict the case materials and the behavior of (/ /)7 herself, who not only wrote the receipt, but also paid money three times to compensate for the damage, and then refused to continue compensation for damage, believing, according to the explanations of a third party, that due to the lapse of time the plaintiffs will not be able to present evidence.

Claiming that she was forced to write a receipt, (/ /)7 did not present any evidence to the court to confirm this fact, and did not contact law enforcement agencies regarding any threats from the plaintiffs or third parties.

According to the report (/ /) the cost of damage resulting from the flood was (/ /) This report was compiled after (/ /)7 refused to reimburse the remaining amount.

Minus the voluntarily paid amount in the amount of (/ /), the plaintiffs asked to recover from (/ /)7 and (/ /)3 for damages caused by the flooding of the apartment, (/ /) compensation for moral damage - (/ /)., cost services of an appraiser – (/ /) expenses for payment of state duty – (/ /)

(/ /)11, the daughter of the plaintiffs, brought to participate in the case as a third party as actually residing in.... (/ /) on... in..., supported the stated demands in full.

By a court ruling from (/ /) (/ /)4, who is the owner... in..., was brought to participate in the case as a co-defendant, on the basis of an agreement for the transfer of an apartment into the ownership of citizens from (/ /) ((/ /) ).

The defendant (/ /)4 did not admit the claim in a written objection, citing the fact that she is an improper defendant, since... she does not live in and has never moved into it, her father (/ /)3 registered this apartment in her property as compensation for the fact that he had another family and after the birth of (/ /)4 he only voluntarily acknowledged paternity and provided minor assistance, never paying child support. After a divorce from his wife and the death of his son, his health condition worsened and he, as a disabled person of the first group, was allocated living quarters, which currently belongs to (/ /)4 The marriage between the parents was concluded in (/ /) years, but mother (/ /)3 did not move, but continued to live in the apartment at.... In (/ /) (/ /)3 she married (/ /)16 and moved to live with him in..., maintaining registration records in apartment.... In September (/ /) their son Ilya was born. Since... was in her property before the marriage was registered, it is her sole property.

Not being a member of the family of her mother (/ /)7 and her father (/ /)3, not living together with them, (/ /)3 cannot be held responsible for the damage caused to the plaintiffs’ apartment, since it is not her fault as the owner of the apartment, in where her parents live, the house was commissioned in (/ /) years, the standard service life of all equipment in the apartment, including plumbing, expires only in (/ /), it does not need repair or replacement, any system malfunctions there was no water supply, applications to the operating organization, including emergency service from... was not received, which can be confirmed by the application log of Eurodom LLC, where there are no records of the departure of mechanics. Only due to poor-quality roofing in (//) year, the roof leaked; streaks and yellow spots formed in the leakage areas.

According to (/ /)4, the report from (/ /) and the appraiser’s report from (/ /) do not confirm either the source of the flooding or the amount of damage in the plaintiffs’ apartment, and therefore the amount of damage. Therefore, he considers the plaintiffs’ demands to be unfounded and not subject to satisfaction ((/ /)).

Attached to the objections (/ /)4 were photocopies of her passport and her husband’s passport (/ /)16, a certificate of state registration ownership rights to... in... from (/ /), marriage certificate from (/ /)16 (/ /) child’s birth certificate – (/ /), (/ /) year of birth, certificate of location (/ /)3 on parental leave for a child up to (/ /) years of age and receiving benefits issued at the place of work (/ /)3 in (/ /) (...), a photocopy of the paternity certificate, a certificate of registered in the apartment at the address: ..., according to which the owner of the apartment is indicated as (/ /)14, (/ /), his wife (/ /)15, (/ /) year of birth, their son - (/ /)16, ( / /) year of birth, son (/ /)17, (/ /)).

No other evidence confirming the actual residence of (/ /)4 in her husband’s apartment in..., where besides him his parents and brother are registered, was not presented to the court.

The case file contains a photocopy of a written agreement concluded by (/ /)7 and (/ /)3, according to which (/ /)3 lives in..., which belongs to her and her mother (/ /)7 on the right of common shared ownership(by (/ /) share) and pays for (/ /) person the maintenance of housing and overhaul ((/ /)).

Defendant (/ /)3 in a written objection to the claim indicated that he did not agree with the claim, since he learned about the fact of flooding... about the stated claim only at the court hearing on January 20, 2015, having read the statement of claim, he considers it unfounded and not subject to satisfaction , referring to the fact that..., in which he lives, was allocated to him by order of the head of the administration... from (/ /) as a person suffering from a serious chronic disease, in which it is impossible for citizens to live together in the same apartment, he was a social tenancy agreement has been concluded, which states that he is moving in alone. Before moving into... he lived with his ex-wife(/ /)18 in..., in..., where he was registered. Due to the expiration of the privatization of housing, they decided to register ownership of the apartment in the name of their daughter (/ /)4, who was issued a certificate of registration of ownership, since he registered her at this address with (/ /) she had never been did not live in this apartment; after the privatization agreement was drawn up, she was again registered at her place of actual residence. (/ /)3 is not a member of her family; her daughter has been married since (/ /) years old and has a young son.

(/ /) (/ /)3 married (/ /)7, who lives with her daughter.... The wife is neither the owner nor the tenant..., she did not move in with her, because the disease (/ / )19 excludes the possibility of citizens living together in one apartment, thus, she did not acquire the right to use this residential premises, based on the fact that the spouses are free to choose their place of residence. Taking into account these circumstances, the spouse remained to reside at her registered address - in....

(/ /)3 is a disabled person of the first group (wheelchair user), is registered with a neurologist and urologist, cannot move independently, (/ /) he underwent an operation that complicated independent care. His wife, who is also disabled and has chronic illnesses, comes to him several times a week, bringing food, medicine and clothes.

On the evening of 05/10/2014, being at home alone, he tried to pour water for himself, but due to the strong pressure and trembling of his hands, he had difficulty closing the tap, some water spilled past the sink, he slipped and fell, he could not get up on his own before his wife arrived, she then helped him sit in the stroller.

Challenging the act from (/ /), the defendant (/ /)3 refers to the fact that no one invited him when drawing up this act, he was not present during the inspection of the plaintiffs’ apartment, although his name is indicated in it and there is a signature, the signature of the plaintiff (/ / )13 is also different from her signature on the statement of claim. Consequently, the act was drawn up without the defendants or witnesses and was not signed by the plaintiffs; the place where it was drawn up, the time of discovery of the leak, the level of flooding of the premises, how and where the water came from, and what measures were taken were not indicated. Therefore, he considers this act invalid; in addition, he believes that the plaintiffs have not provided evidence of the reason for the flooding of the apartment. The report only indicates traces of wetness on the ceiling and partially on the kitchen wall near the window and on the wall at the entrance to the room; nothing is said about the origin of the moisture and the origin of the soaking of two rows of two rows of tiles and swelling of the laminate; the report does not indicate the detection of leakage from apartments on top, although they could have appeared due to any other reasons not related to the actions of the defendant, because in (/ /) year there was flooding of all apartments of the house from (/ /) floor to the first due to poor-quality roofing, which is confirmed by the act dated (/ /) in connection with which the plaintiff’s reference to the reason specified in the act – the failure of the tap on the water filter in... – is considered untenable. According to the defendant, the act only confirms the fact of flooding, but cannot establish the cause of the flooding; it indicates only the probable cause, and specific circumstances are established by specialists, including by examining the source of the flooding. However, no one came to his apartment to inspect it and examine the location of possible leaks.

The plaintiffs live in..., the apartment is rented to the Salnikov spouses, who are not registered in it, living without a contract, previously the apartment belonged to other owners, so the separation of the laminate seams could be the result of the actions of the previous owner, poor-quality coating (the house was rented in (/ /) with defects and in poor quality). The plaintiffs did not present an act of acceptance and transfer of residential premises when concluding a purchase and sale agreement, nor did they provide confirmation of ownership of the things in the apartment that could have belonged to both the former owner of the apartment and the tenants. The flooding of the apartment could have been the result of careless actions of the plaintiffs themselves or temporary residents, especially since the plaintiffs point to the fact of long-term flooding, while the defendant claims that on the day of the flood he allowed a small accumulation of water to form in the kitchen, which was only a coincidence and a reason for the plaintiffs demanding compensation for damage in the amount of a sum of money equal to five pensions of the defendant, for which the plaintiffs want to repair the entire apartment.

He believes that the claim should be rejected due to its groundlessness, since the plaintiffs did not provide evidence of a documentary inspection of the defendant’s residential premises, did not present evidence objectively indicating that the flooding in the apartment was due to the defendant’s fault, did not invite him to draw up a flood report, having forged his signature, and were not notified of the inspection of the apartment by the appraiser, which deprived him of the opportunity to have information about the damage and the opportunity to challenge these documents (/ /)

The defendant (/ /)7 did not admit the claim, citing the fact that the cause of the flooding had not been established; (/ /) she came home and saw her husband lying in the water. She was not present when the act was signed; the signature on the act was not hers or her husband’s. She did not go into the plaintiffs' apartment, she was only in the kitchen some time after the flooding while writing a receipt, which she was forced to write, so she wrote it. The defendant is only formally a member of the family (/ /)3, with whom the marriage is formalized. She has her own apartment in..., in which she lives, but she often stays with her husband, having nothing to do with his apartment, and does not admit her guilt in causing damage to the plaintiffs’ apartment. The expert's report did not indicate the damaged area, the conclusion was made on the basis of a photo, there was only an external inspection, there was no technical inspection. There was water, but there was no damage in the defendants' apartment, but he cannot provide evidence of this. The defendant has no other calculation.

When resolving this dispute, the court, based on a study and assessment of the written evidence presented, as well as explanations of the parties, a third party, and the testimony of a witness questioned at the request of the defendant (/ /)7, came to the conclusion that the claim should be satisfied, considering the circumstances of damage to the apartment established plaintiffs through the fault of defendants (/ /)3 and his wife (/ /)7, living in..., having rejected the claim against the daughter of defendants (/ /)4, who does not live in this apartment with her parents, it follows from the evidence presented , that she was registered immediately after her birth in ..., with her mother (/ /)7 (from (/ /) to (/ /)), in the same apartment she was again registered from (/ /) with her son - (/ /)20, (/ /) year of birth, being the owner of (/ /) a share of this apartment on the basis of an agreement for the transfer of the apartment into the ownership of citizens (privatization agreement) dated (/ /) ((/ /)). Being also the owner... in..., (/ /)4 does not actually live with his parents in the specified apartment. Her parents, defendants (/ /)7 and (/ /)3, live in it, which is also confirmed by the testimony of a witness (/ /)8, questioned by the court at the request of the defendant (/ /)7

The arguments of the defendants' appeals are that cohabitation of (/ /)7 with (/ /)3 is impossible due to his illness, (/ /)7 only comes to him to provide assistance, and permanently lives in another apartment due to... . (/ /), contradict the case materials, from which it follows that the one-room apartment in... is actually inhabited by the family of their adult daughter, who works in..., is married to (/ /)16, they have a child. , which is confirmed by a certificate of registration (/ /)4 with a son (/ /) in the specified apartment, presented by an agreement concluded between mother and daughter on the distribution of expenses for housing and major repairs, others presented (/ /)3 with a written objection documents, as well as explanations of (/ /)3 himself in his written objections.

In resolving the dispute, the court was correctly guided by the rules of substantive and procedural law to be applied to the disputed relations of the parties, based on the fact that, in accordance with Art. Civil Code Russian Federation, harm caused to the person or property of a citizen is subject to compensation in full by the person who caused the harm; the person who caused the harm is released from compensation for harm if he proves that the harm was not caused through his fault.

On this basis, the court correctly distributed the burden of proof of the circumstances to be proven.

Having analyzed the norms of housing law in relation to the disputable relations of the parties, the court came to the conclusion that the proper defendants for the claims stated by the plaintiffs are not the owner of the apartment - (/ /)4 (daughter of the defendants), who bears the burden of maintaining this apartment, but the direct causes harm, living in..., the flooding from this apartment was due to their fault, since there was no evidence of their guilt, contrary to the rules of Art. and Art. , was not presented to the court by the defendants. On the contrary, as follows from the case materials, the defendant (/ /)7, recognizing the existence of damage as a result of the flooding of the plaintiffs’ apartment and the guilt of her husband in causing it, agreed to pay a smaller amount of damage, which the plaintiffs agreed to, taking into account the financial situation of the defendant (/ /)3; wrote a receipt, actually began to pay the amount of damage, but subsequently refused to pay the remaining amount.

The court, having examined and assessed the evidence presented by the parties according to the rules of Art. , including taking into account the explanations of the defendants themselves, found it established that the leak occurred due to the failure of the valve on the AKVOFOR water filter. The defendants have not proven any other reason, nor has the court established it.

The nature and volume of damages caused, which the court correctly determined on the basis of Art. and existing judicial practice, confirmed by the evidence presented by the plaintiffs, including in comparison with the acts of flooding the premises from (/ /) the nature and extent of damage caused in (/ /) year, which the defendants have not refuted in the prescribed manner, no evidence of a different amount of damage has been presented, petition the appointment of an examination was not announced, despite the written response (/ /) regarding their claims expressed in the review (/ /)3 and objections (/ /)7 ((/ /)).

Judicial practice on:

Judicial practice on the application of Art. 15, 393 Civil Code of the Russian Federation

Judicial practice on the application of Art. 1064 Civil Code of the Russian Federation

Judicial practice on the application of Art. 15 Civil Code of the Russian Federation

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 7, 1997 N 3184/97 The court did not take into account that the power of attorney to receive the goods was of a one-time nature. Thus, the plaintiff released the goods to an unauthorized person. In this case, according to Art. 312 of the Civil Code, the risk of consequences falls on the supplier. The court decision was overturned and the claim was denied

The Presidium of the Supreme Arbitration Court of the Russian Federation considered the protest of the Deputy Chairman of the Supreme Arbitration Court of the Russian Federation against the decision dated 10.24.96 and the appellate court ruling dated 12.30.96 Arbitration Court of the city of Moscow in case No. 66-406.

Having heard and discussed the judge's report, the Presidium established the following.

The open joint stock company "Margarine Plant" filed a claim with the Moscow Arbitration Court against state enterprise"State Concert" on the collection of 24,290,677 rubles of debt for supplied products, 130,002,926 rubles of penalties for late payment and 18,997,739 rubles of interest for the use of others in cash.

Decision dated October 24, 1996 claims partially satisfied, taking into account the reduction of penalties to the amount of the principal debt.

By the decision of the appellate court dated December 30, 1996, the decision was upheld.

In the protest of the Deputy Chairman of the Supreme Arbitration Court of the Russian Federation, the following are proposed: judicial acts cancel and remand the case for a new trial.

The Presidium believes that the protest must be satisfied in part for the following reasons.

According to the agreement dated 12/08/95 N 13 concluded between the parties, the margarine plant undertook to provide fat products in the quantity and assortment agreed upon by the parties, and State Concert to accept them for pickup and pay for them.

In pursuance of the terms of the agreement, on December 14, 1995, State Concert entered into an agreement for forwarding services with the closed joint-stock company "Rassar", whose employee is commodity expert R.Kh. Akopyan. - a power of attorney dated December 14, 1995 N 321 was issued with a validity period until December 24, 1995 to receive goods of a certain name and in a certain quantity.

The margarine plant released products to the authorized person on December 14, 1995 under waybills N 31754, 31755 and on December 20, 1995 under waybills 40785, 81914 for a total amount of 31,109,538 rubles. The supplier did not receive payment for it in full. The underpayment amounted to 24,290,677 rubles.

To justify the refusal to pay for the products under invoices 40785, 81914, Gosconcert referred to the fact that the products were not ordered or received by them under these invoices, and also to the fact that after receiving the goods under the invoices dated 12/14/95, power of attorney dated 12/14/95 N 321 , issued to Akopyan R.Kh., is considered cancelled, therefore the supplier on December 20, 1995 did not have the right to make additions to the same invoice and release the goods using it.

The court, partially satisfying the claims, proceeded from the proof of the fact that the defendant received the disputed goods, as well as from the lack of evidence that the plaintiff and the merchandiser were notified by the defendant about the early cancellation of the power of attorney. Therefore, the court decided that on December 20, 1995, the plaintiff lawfully released goods manager Akopyan R.Kh. controversial products.

Meanwhile, having made such a conclusion, the court did not take into account that the power of attorney dated December 14, 1995 N 321 was of a one-time nature, since on its reverse side the name and quantity of inventory items to be received are indicated, and the blank fields of the power of attorney are crossed out. It follows from this that in order to receive a consignment of goods on December 20, 1995, the buyer had to issue a new power of attorney indicating the name and quantity of the goods of this consignment, which was not done. Thus, on December 20, 1995, the plaintiff released the goods to an unauthorized person. In this case, according to Article 312 of the Civil Code of the Russian Federation, the risk of the resulting consequences falls on the supplier.

Under such circumstances, the decision of the court of first instance and the decision of the appellate court should be canceled and the claim rejected.

Taking into account the above and guided by Articles 187-189 of the Arbitration Procedural Code of the Russian Federation, the Presidium of the Supreme Arbitration Court of the Russian Federation decided:

the decision of 10.24.96 and the appellate resolution of 12.30.96 of the Moscow Arbitration Court in case No. 66-406 are cancelled.

Refuse the open joint-stock company "Margarine Plant" to file a claim against the state enterprise "Goskontsert".

Chairman of the Supreme

Arbitration Court

Traffic police officers suspected the man of driving a car while alcohol intoxication. After conducting the appropriate test, an entry appeared in the report - drunk.

The driver did not agree with this and insisted on repeated tests, which should be carried out in medical institution. However, tests at the district hospital also showed the alcohol content in the exhaled air. Although there are some strange things here.

The documents on the test stated that the purpose of the study was to identify the content opiates, cannabinoids, psychostimulants, amphetamines, barbiturates. There was no mention of alcohol, but it was found.

As a result, the magistrate deprived the man of his license for 1.5 years and imposed a fine of 30 thousand rubles. Not agreeing with the verdict, the driver was examined on the same day at another medical institution for own initiative. This study clearly showed that no alcohol was found in his body.

In addition, the man is a devout Muslim: he honors rituals, regularly goes to the mosque, and performs prayers five times a day. Alcohol for him is absolutely prohibited - haram ( prohibition, taboo - approx.).

When drawing up contractual relations, counterparties must clearly understand with whom they are concluding an agreement and check the authority of the person signing it, since signing by an unauthorized person gives rise to rights and obligations only for this person, unless another person (represented) subsequently directly approves this transaction. The given example of judicial practice clearly shows the groundlessness of the defendant’s arguments about the invalidity of the transaction due to the signing of the agreement by the director of the branch, who has a power of attorney.

On 02.02.2016, the Economic Court of the Minsk Region considered the case on the claim of the limited liability company “A” against the open joint-stock company “O” for the recovery of 118,601,322 Belarusian rubles, of which 56,095,640 Belarusian rubles. principal debt, 14424388 Belarusian rubles. fines, 48081294 Belarusian rubles. interest for the use of other people's funds in connection with the defendant's improper fulfillment of obligations under supply agreement No. 14/04 dated July 14, 2015, in accordance with the terms of which goods were delivered to the defendant under a bill of lading dated July 17, 2015 No. 0367878 for the total amount 66095640 BYR

The plaintiff supported the claims in full at the court hearing on the grounds specified in the statement of claim.

The defendant, duly notified of the time and place of the trial, did not appear in court. A response was received from the defendant in which he asked to hold a court hearing in the absence of the defendant’s representative. He petitioned to reduce the stated amount of penalties and interest for the use of other people's funds. The petition was accepted by the court for consideration.

In the previously submitted response dated December 2, 2015 No. 01-13/2698, the defendant asked the court to refuse to satisfy the plaintiff’s demands for the recovery of 14,124,388 Belarusian rubles. fines, 48081294 Belarusian rubles. interest for the use of other people's funds, since he believed that the agreement on behalf of the defendant was signed by an unauthorized person - the head of the branch. The defendant, referring to Article 168 of the Civil Code of the Republic of Belarus (hereinafter referred to as the Civil Code), believes that the conditions provided for in paragraphs 5.2 and 5.3 of agreement No. 14/04 dated July 14, 2015, were not agreed upon by the parties.

According to part three of Article 177 of the Economic Procedural Code of the Republic of Belarus (hereinafter referred to as the CPC), if the defendant, duly notified of the time and place of the trial of the case, fails to appear at the court hearing of the court considering economic cases, the court considering economic cases conducts the trial of the case in its absence, unless otherwise established by the COD.

According to part five of Article 186 of the Code of Criminal Procedure, persons participating in the case and their representatives who did not appear at the court hearing after the announced break, as well as those who left the courtroom before the end of the consideration of the case, are recognized as having been properly notified. Further trial carried out in their absence.

Under such circumstances, the court came to the conclusion that it was possible to consider the case in the absence of the defendant’s representative.

Having heard the plaintiff’s position and examined the case materials, the economic court established the following circumstances.

Between the plaintiff and the defendant (represented by the construction department No. 170 of OJSC "O"), a supply agreement No. 14/04 dated July 14, 2015 (hereinafter referred to as the Agreement) was concluded, in accordance with clause 1.1 of which the supplier (plaintiff) supplies, and the buyer (defendant) accepts and pays for the following products: polystyrene foam thermal insulation boards of the brands PPT-10-A-R, PPT-15-A-R, PPT 20-A-R, PPT-25-A-R, PPT-35-A-A, PPT -15-NA-R, PPT-20-NA-R, PPT-25-NA-R, PPT-35-NA-R in quantities and at prices specified in the protocol for agreeing on free selling prices and the invoice, which is an integral part of part of the Agreement.

On July 14, 2015, the parties signed Protocol No. 829 agreeing on free selling prices for goods, in which they agreed on the name, quantity, price and value of the goods to be supplied.

In pursuance of the terms of the Agreement, the plaintiff delivered goods to the defendant according to the consignment note dated July 17, 2015 N 0367878 for a total amount of 66,095,640 Belarusian rubles.

The defendant accepted the goods, there were no claims regarding the quality, quantity or price of the goods, which is confirmed by the receipt mark on the delivery note and the subsequent partial payment for the goods.

According to Article 290 of the Civil Code, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements - in accordance with the requirements usually presented.

By virtue of Article 288 of the Civil Code, obligations arise from the contract.

In accordance with paragraph 1 of Article 486 of the Civil Code, the buyer pays for the supplied goods in compliance with the procedure and form of payment provided for in the supply agreement. If the procedure and form of settlements are not determined by agreement of the parties, then settlements are carried out by payment orders.

In clauses 4.2 and 4.3 of the Agreement, the parties determined the settlement procedure, namely: the buyer (defendant) pays the supplier (plaintiff) for products in accordance with the protocol for agreeing on free selling prices for products and the invoice, which are an integral part of the Agreement. Payments are made within 30 calendar days from the date of shipment of the products by depositing funds by the buyer (defendant) into the bank account of the supplier (plaintiff).

The defendant does not properly fulfill its obligations to pay for the goods delivered. The payment was made by the defendant partially by payment order dated 08/21/2015 No. 536 in the amount of 10,000,000 Belarusian rubles.

As of the date of consideration of the case on the merits under the Agreement, the defendant has not repaid in full and amounts to 56,095,640 Belarusian rubles. Thus, the economic court comes to the conclusion that the defendant has improperly fulfilled its obligations under the Agreement.

The court does not take into account the defendant’s arguments about the non-conclusion of the Agreement due to its signing by an unauthorized person and, as a consequence, the inconsistency of the terms of liability in the event of non-fulfillment or improper execution of the Agreement, since these circumstances are not confirmed by the case materials.

Article 184 of the Civil Code determines that in the absence of authority to act on behalf of another person or when such authority is exceeded, a transaction is considered to be concluded on behalf and in the interests of the person who completed it, unless another person (represented) subsequently directly approves this transaction. Subsequent approval of the transaction by the represented creates, changes and terminates for him civil rights and obligations under this transaction from the moment of its completion.

The case materials contain a copy of power of attorney No. 28 dated June 30, 2015, which was issued to the head of the construction department branch No. 170 of OJSC “O”. Clause 8 of the said power of attorney granted the head of the branch the right, on behalf of the defendant, to sign, conclude, and amend agreements and contracts necessary for the activities and functioning of the company.

In addition, the evidence presented in the case confirms the fact that the defendant approved the disputed transaction by taking actions to execute it. In particular, in the case materials there is a consignment note dated July 17, 2015 N 0367878 and a power of attorney for receipt of inventory items dated July 15, 2015 N 204, issued to the financially responsible employee of the defendant, in which reference is made to the agreement dated April 14, 2015 N 14 /04; the goods were used in the activities of the defendant (its structural unit), which is not disputed by the defendant; objections and claims regarding the goods supplied by the defendant were not presented to the plaintiff.

The goods received by the defendant under the specified consignment note within the framework of the disputed agreement were partially paid in the amount of 10,000,000 Belarusian rubles. payment order dated August 21, 2015 N 536.

Thus, by his actions, the defendant approved the completion of the transaction on the terms set out in the Agreement.

Articles 310 and 311 of the Civil Code establish that the fulfillment of an obligation can be ensured by a penalty (fine, penalty), which is recognized as a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of the obligation, in particular in the case of delay in fulfillment.

According to clause 5.1 of the Agreement, the parties agreed on a penalty for late payment for goods in the amount of 0.3% for each day of delay in payment of the cost of products shipped and not paid for on time.

Having checked the calculation of the penalty made by the plaintiff, the court comes to the conclusion that it is justified and that the plaintiff has the right to demand the collection of penalties for the period from August 18, 2015 to November 10, 2015 in the amount of 14,424,388 Belarusian rubles.

The court recognizes the calculation of the penalty as justified, since it complies with the terms of the contract and the requirements of the law, and is made within the limits of the amounts that the plaintiff has the right to claim.

When deciding the defendant’s petition to reduce the amount of the penalty to be collected, the economic court proceeds from the following.

In accordance with Part 1 of Article 314 of the Civil Code, if the penalty payable is clearly disproportionate to the consequences of violation of the obligation, the court has the right to reduce the penalty.

When determining the amount of the penalty to be collected from the defendant, the court considers it possible to apply Article 314 of the Civil Code and reduce the amount of the declared penalty presented for collection by the plaintiff to 2,000,000 Belarusian rubles. due to its disproportion to the consequences of breach of obligation.

As the criteria underlying the conclusion that the penalty is disproportionate, the court takes into account the following circumstances: a fairly high rate of penalties (0.3%), the collection of interest for the use of other people's funds, which to a certain extent compensate for the consequences caused by the violation of a monetary obligation; a relatively short period of failure by the defendant to fulfill the obligation.

In addition, liability in the form of a penalty (including contractual) is provided by the legislator as an incentive for the timely fulfillment of a party’s obligations under the contract, and not as a means of enriching the creditor.

Since the legislator has not established a limit within which the court can reduce the penalty under Article 314 of the Civil Code, the court in each specific case resolves this issue individually, taking into account the evidence presented and the circumstances of the case.

Thus, 2,000,000 Belarusian rubles should be recovered from the defendant. penalties.

By virtue of paragraph 1 of Article 366 of the Civil Code, for the use of other people's funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or savings at the expense of another person, interest on the amount of these funds is subject to payment, the amount of which is determined by the refinancing rate of the National Bank of the Republic of Belarus on the day of fulfillment of the monetary obligation or its corresponding part, with the exception of debt collection in judicial procedure when the court satisfies the creditor’s claim based on the refinancing rate of the National Bank of the Republic of Belarus on the day of the decision.

These rules apply unless a different interest rate is established by law or agreement.

In clause 5.3 of the Agreement, the parties established a different amount of interest for the use of other people's funds, namely 1% of late paid funds for each day of delay.

Consequently, if there is a delay in the defendant’s fulfillment of the monetary obligation under the Agreement, the plaintiff has the right to demand interest for the use of other people’s funds for the period from 08.18.2015 to 11.10.2015 in the amount of 48,081,294 BYR.

The court recognizes the calculation of interest for the use of other people's funds as justified, since it complies with the terms of the contract and the requirements of the law, and is made within the limits of the amounts to which the plaintiff has the right to claim.

According to paragraph 4 of Article 366 of the Civil Code, if the amount of interest payable for the use of someone else’s money, the amount of which is determined by the agreement on the basis of the second part of paragraph 1 of Article 366 of the Civil Code, is clearly disproportionate to the consequences of violation of the obligation, the court has the right to reduce the amount of this interest at the request of the debtor, but not lower than the amount of interest calculated in accordance with part one of paragraph 1 of Article 366 of the Civil Code.

In deciding on the defendant’s petition to reduce the amount of interest for the use of other people’s funds, the court came to the conclusion that the calculated interest for the use of other people’s funds is clearly disproportionate to the consequences of the violated obligation, since the contractual interest rate clearly exceeds the one-day refinancing rate established by the National Bank of the Republic of Belarus .

The interest rate established in the Agreement for the use of other people's funds does not correspond to the principle of good faith and reasonableness of the participants civil legal relations, and is also aimed at the plaintiff’s implementation of the possibility of collecting interest for the use of other people’s funds for the purpose of his own enrichment, and not the restoration of the violated right, which is also confirmed by the stated requirement to collect a penalty from the defendant.

The court also takes into account the amount of the penalty collected, which compensates to a certain extent for the consequences caused by the defendant’s violation of the monetary obligation.

Based on the foregoing, the court considers it possible to reduce the amount of interest to be collected for the use of other people's funds to 4,000,000 Belarusian rubles. due to their obvious disproportion to the consequences of the violated obligation.

Consequently, 4,000,000 Belarusian rubles must be recovered from the defendant. interest for the use of other people's funds.

Thus, the court recovered from the open joint stock company"O" in favor of limited liability company "A" 56095640 BYR. principal debt, 2,000,000 Belarusian rubles. fines, 4,000,000 Belarusian rubles. interest for the use of other people's funds (total 62,095,640 Belarusian rubles), as well as 5,930,066 Belarusian rubles. in reimbursement of expenses for payment state duty, the rest of the claim was denied.

The popular word today “life hacking” (from the English life hacking), as Wikipedia writes, means “the tricks of life”, “folk wisdom” or useful advice, helping to solve everyday problems, thereby saving time.

In 2011, the term appeared on the online pages of the Oxford Dictionary.

Lifehack is designed to solve problems enough large quantity people, saving them time, effort and money. At the same time, a life hack is not the creation of something new (not the invention of the wheel), but the original use of an existing one, for example, “How to make a garden table from a wheel?”

Legal practice also has many of its own specific life hacks. I want to talk about one thing today.

Very often, when writing a claim, statement, or objection to a claim, it becomes necessary to refer to legal position, which is set out in a separate court decision (meaning the decisions of the Supreme Court of the Russian Federation).

After in several cases the courts, simply put, “did not notice” or did not pay attention to my arguments. which included the legal positions of the RF Armed Forces, set out in individual court decisions, in particular, when considering a dispute over land relations, it became clear that something needed to be changed in order to avoid this in the future.

It is generally accepted that lower courts are bound by the conclusions law enforcement practice, set out in the Bulletin Supreme Court RF. reviews of judicial practice and Resolutions of the Plenum of the Armed Forces of the Russian Federation. If you make reference to the examples set out in these documents to substantiate your requirements, then this is considered normal and acceptable.

But what if, in a specific case for which a claim is being prepared, there is a separate court decision of a higher authority that fully confirms the requirements, but is not included in the treasured list. Moreover, it is precisely this that is an additional and sometimes the main argument in the dispute, without which the motivation for the claim can no longer be considered sufficiently convincing. Expect when the right solution will end up in one of the listed documents, as much as you like, but in the end it may not get there at all, and time will be lost.

Very often in the text of the claim, in addition to listing evidence, legal norms, conclusions of law enforcement practice, as an additional argument, there is often a reference to a specific decision of the Supreme Court of the Russian Federation (most often this is a cassation ruling on a specific case), and a quote from the decision on how this or that article of the law should be applied.

At the same time, referring as an additional argument to the decision of the RF Supreme Court in a specific case. to attract the attention of the court, the details of the judicial act are indicated, excerpts from it are quoted in explanations, in debates, explanations, speeches are attached to the case in writing, but all in vain. The court did not take your argument into account.

How do the courts justify such actions?

Sometimes nothing, they don’t even notice the decision itself or the position expressed in it.

Often the court in its decision indicates that the plaintiff, defendant, and third parties did not take part in the case to which the decision is referred. therefore, it is not prejudicial and cannot be used in the present case.

Also, a judge can generally say that we do not have case law, and refer to a separate decision, even if it is not worth it from the Supreme Court. that each case is examined separately, taking into account all existing circumstances, etc.

Therefore, this particular presentation of material does not work in most cases.

What to do in such cases?

Firstly, those involved in the case should not be embarrassed by such refusals. The only task that a lawyer always faces is to do his job efficiently and use all opportunities for this.

Secondly, you need to remember and observe three principles; they are well known and do not need explanation. This is the accessibility of the material, its clarity and persuasiveness. I would like to emphasize that persuasiveness lies in the form, and not just in the content. How does this look in relation to our case?

From my own experience I can say that in most cases the judge’s position on a particular case is formed 80% already in the process of studying the statement of claim. or other document submitted and evidence attached thereto.

By the way a claim or other procedural document is drawn up, how it sets out the facts and presents evidence, what petitions are filed, its very execution, including the presence grammatical errors, as well as based on the personality of the applicant and his representative, the judge almost immediately becomes clear with whom he will have to deal, and how high these persons can go up the ladder of the courts if they receive a refusal decision.

What needs to be done to achieve the desired goal?

First of all, you need to understand the evidence in the case and accurately determine that the decision of the Supreme Court of the Russian Federation fully confirms the position set out in the lawsuit, that it has not lost its relevance at present.

Prohibition to refer in your arguments to a judicial act of a higher authority court, does not exist. Courts very often use the phrase that “the current legislation does not contain a ban on this.” Let’s take advantage of this.

First, you need to print out the text of the court decision of the Supreme Court of the Russian Federation in a separate copy. You can, of course, simply print it out in Word, taking the text of the judicial act from the same “Consultant” or “Guarantor”. But it will not look as convincing as we would like.

The website of the Supreme Court of the Russian Federation has a special section - texts of judicial acts (http://test.vsrf.ru/indexA.php)

It is from there that you need to download the text of the court decision you need, it is downloaded in PDF format, and then printed page by page. As is known, the texts of judicial acts of the RF Armed Forces have a specific form of execution, there is practically no depersonalization in the nickname (unlike the same “Consultant”), there are signatures of judges. As the source of the received document, after the text you can insert a link to the page from the website of the RF Armed Forces from which the decision was downloaded.

Then highlight the desired part of the text with a marker. There is no need to highlight a lot; one or two sentences to the point are enough.

Then attach this text of the court decision along with other documents attached to the claim and, accordingly, include it in the appendices to the claim. And then send it to court in the usual manner.

This must be done precisely at the stage of filing a claim, because then it is quite difficult to include such a decision in the case materials during the consideration.

Now referring to the legal position of the Supreme Court, after presenting it, indicate in brackets the sheet of the case and the paragraph on the page (case file no.).

What is this for?

If you simply indicate in the claim the details of the court decision and quote it, it is not a fact that the judge will want to independently look for it in the Consultant, much less read it in full, delving into its meaning.

But if the decision, attached in the required form, is in the case materials, and there is a link to the page and even a paragraph, which will also be highlighted and noticeable, then the likelihood that the judge will read this position and take it into account increases many times over.

In addition, if the claim is denied, or a complaint is filed to a higher authority, then the document can also refer to this court decision and indicate the pages of the case where the required text is available. Which will certainly be read by a higher court judge. Because it is already in place and there is no need to search for it further. This is a brick in the foundation, the basis for future appeal and cassation.

And the court also understands this circumstance.

Therefore, the courts in every possible way prevent the inclusion of third-party decisions in the case materials if they do not fit into their position on a particular case, since they know very well that due to the heavy workload, none of the judges of higher courts will study anything additionally besides the case materials.

It's very simple. All evidence is contained only in the case materials. Therefore, the task is to ensure that by the end of the consideration of the case in the court of first instance, the case materials contain all possible evidence that is available at that time.

It can always be argued that individual court rulings of the same Supreme Court of the Russian Federation on specific cases are not binding on lower courts, except for those whose judicial acts were canceled by these decisions.

I agree that this happens very often.

But the main task in any business is to make every effort to support your position, and what is proposed to be done will never be superfluous.

It is not known for certain how the matter will develop later. Therefore, it is not worth predicting in advance about the negative outcome of the case. There are enough examples when court decisions were canceled only after consideration of the complaint by the Chairman of the Supreme Court of the Russian Federation, after the decision of the Constitutional Court of the Russian Federation, and in some cases by the ECHR, such as the case “Shtukaturov v. the Russian Federation”.

I wish you all success in our difficult work.

Lawyer Sergey Nikolaevich Nesterov, Ivanovo region, Teykovo.