What has changed since August 1, 2016? When the provisions of Art. 317.1 of the Civil Code of the Russian Federation?
Firstly, earlier the provisions of Art. 317.1. The Civil Code of the Russian Federation was applied automatically if the parties to the contract did not provide for a condition on its non-application. From August 1, 2016, the provisions of Art. 317.1. The Civil Code of the Russian Federation will be applied only in cases where the parties have directly established in the contract a condition for its application or an indication of the application of such interest is established by law.
Secondly, until August 1, 2016, the provisions of the article were to be applied only to business relations. Now, individuals also have the right to include in the agreement concluded between them a condition on the application of Art. 317.1 of the Civil Code of the Russian Federation to your relations.
However, what remains unchanged is that interest is subject to accrual for the period of granting the debtor an installment plan/deferred payment, that is, when the creditor himself has fulfilled his obligations (to supply goods, perform work, provide services, etc.). This article does not apply to cases of advance payment for goods, works, services.
Is interest always calculated and paid under Art. 317.1 of the Civil Code of the Russian Federation?
From August 1, 2016, interest is subject to accrual and payment to the creditor if the law or agreement provides for their accrual. Unless the parties have specified in the agreement and the law does not directly provide otherwise, the amount of interest is determined by the key rate of the Bank of Russia in force during the relevant periods. Previously, interest was calculated based on the refinancing rate, but this change was more formal than significant.
Participants in civil transactions, as before, have the right to change the rate from which the amount of interest will be determined.
We are often asked whether it is necessary to pay interest to the creditor if he has not made a corresponding claim. As of August 1, 2016, there are two answers to this question:
- yes, it is necessary if the contract was concluded in the period from June 1, 2015 to July 31, 2016 and the parties did not include in the contract a condition on the non-application of the provisions of Art. 317.1 of the Civil Code of the Russian Federation to their legal relations;
- no, it is not necessary if the agreement was concluded before June 1, 2015, as well as during the period from August 1, 2016 and the parties did not provide for the accrual of such interest in the agreement, and the law does not directly indicate their accrual.
Interest under art. 317.1 of the Civil Code of the Russian Federation are not a sanction for failure to fulfill obligations. This is the usual “fee” for using the lender’s funds. Civil legislation is based on the principle of good faith of the participants: it is assumed that the debtor under an agreement concluded during the period from June 1, 2015 to July 31, 2016 should not wait for an additional claim to be sent to him from the creditor, but must independently repay the debt in excess of the amount of the main one pay the debt and interest.
In order to exclude the application of the article to the relations of the parties under an agreement concluded after June 1, 2015, it was necessary in the text of the agreement itself or in the additional agreement to it (if the agreement has already been concluded), to provide the following wording: “For the legal relations of the parties under this agreement, the provisions Art. 317.1. The Civil Code of the Russian Federation does not apply." If there is no such wording in the contract, Art. 317.1. The Civil Code of the Russian Federation is applied by default.
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Commentary to Art. 317 Criminal Code
1. The act - attempted murder or murder - must be committed against regular law enforcement officers, military personnel, relatives of these persons (clauses 3, 4 and 37 of Article 5 of the Code of Criminal Procedure of the Russian Federation). The categories of military personnel and law enforcement officers who may be victims of an attack on their life are determined by their performance of functions to protect public order and ensure public safety. In judicial practice, the fulfillment of duties to protect public order and ensure public safety is understood as carrying out guard and patrol services in public places, maintaining order during mass events, eliminating the consequences of public and natural disasters, preventing or suppressing illegal attacks. The victim's activities must be legal.
2. The crime is completed from the moment of carrying out actions that constitute an attempt in any way on the life of a law enforcement officer, military personnel or their relatives.
3. The subjective side is characterized by guilt in the form of direct intent and (alternatively) the goals of preventing the legitimate activities of the victim (preventing, stopping, changing them) or the motive of revenge (repaying) for his past activities in maintaining public order and ensuring public safety.
4. The commented prohibition should be distinguished from similarities with it based on objective and subjective signs of murder (Article 105), a terrorist act (clause “b”, Part 3 of Article 205), encroachment on the life of a statesman or public figure (Article 277 ), attacks on the life of a person carrying out justice or preliminary investigation (Article 295).
The actions of a person from 14 to 16 years of age who committed an attack on the life of a law enforcement officer, military personnel, as well as their relatives, must be qualified under paragraph “b” of Part 2 of Art. 105 of the Criminal Code.
How to compare Art. 317.1 of the Civil Code of the Russian Federation and Art. 395 of the Civil Code of the Russian Federation and is it possible to use them simultaneously?
The question of the relationship between Art. 317.1. and Art. 395 of the Civil Code of the Russian Federation is also not unambiguously resolved at the moment. The courts also disagree on this issue, and their positions are consolidated only at the level of the first instance. Thus, the Arbitration Court of St. Petersburg and the Leningrad Region, in its decision dated July 8, 2015 in case No. A56-30587/2015, which entered into legal force, indicated that the grounds for calculating these interests are different and their simultaneous calculation is possible. This position seems to be the most justified.
Art. 317.1 of the Civil Code of the Russian Federation, as noted above, is not a sanction for failure to fulfill obligations (unlike Article 395 of the Civil Code of the Russian Federation). Considering the situation from this point of view, we come to the following conclusion: if the debtor fulfills the obligation to pay the principal debt, but does not pay the interest accrued on it under Art. 317.1. Civil Code of the Russian Federation, then for this interest the creditor has the right to make a claim for the accrual and payment of interest for the use of other people's funds in accordance with Art. 395 of the Civil Code of the Russian Federation from the moment of delay in payment of interest under Art. 317.1. Civil Code of the Russian Federation and until their actual payment.
The Arbitration Court of the Rostov Region in its decision dated 07/03/2015 in case No. A53-3935/15 (entered into legal force) and dated 07/06/2015 in case No. A53-32356/14 (the appellate instance left the decision unchanged) expressed a different position: “The court believes that the provision of Art. 317.1 of the Civil Code of the Russian Federation (due to the subject composition of persons, the emergence of a dispute from entrepreneurial activity) are a special norm in relation to Art. 395 of the Civil Code of the Russian Federation. In connection with the above, in cases where the debtor - a commercial organization does not pay the amount of money after the due date, interest is payable on the amount of the debt: to the relations of the parties that existed before May 31, 2015, the provisions of Art. 395 of the Civil Code of the Russian Federation, and for relations existing after June 1, 2015, the provisions of Art. 317.1 of the Civil Code of the Russian Federation.”
The Arbitration Court of the Kemerovo Region adheres to a similar position: decisions dated June 26, 2015 in case No. A27-7790/2015 (entered into legal force), dated June 29, 2015 in case No. A27-8074/2015 (entered into legal force ) and dated 07/06/2015 in case No. A27-8589/2015 (the appeal was returned).
Interest under art. 395 of the Civil Code of the Russian Federation are subject to accrual from the moment when the debtor has a delay in fulfilling payment obligations. The calculation of interest under Art. 317.1 of the Civil Code of the Russian Federation must be carried out from the moment the debtor receives fulfillment of obligations from the creditor (goods, results of work, etc.) until the moment payment is made for them. At the same time, interest under Art. 317.1 of the Civil Code of the Russian Federation will be accrued during the period when there was a delay in payment, since untimely fulfillment of obligations did not entail the termination of the use of interest on the monetary obligation. That is why, in this case, the interest accrued in accordance with Art. 317.1. Civil Code of the Russian Federation, interest is subject to accrual for the use of other people's funds under Art. 395 of the Civil Code of the Russian Federation. Double liability does not arise, since the grounds for calculating these interests are different.
To better understand how the calculation is made in this case, let's look at an example. Let’s assume that an agreement has been concluded for the supply of goods worth 10,000 rubles with the condition of payment within 10 calendar days from the date of delivery. On the 10th, the buyer accepts the goods, and from the 11th to the 20th, interest is subject to accrual under Art. 317.1 of the Civil Code of the Russian Federation. The buyer did not fulfill the obligation to pay on time and made payment only on the 25th. He actually used the funds from the 11th to the 25th, and from the 21st to the 25th there was a delay for which the creditor has the right to demand payment of interest under Art. 395 of the Civil Code of the Russian Federation (if the contractual amount of the penalty for late payment is not established). As a result, the buyer owes the lender 10,000 rubles plus interest under Art. 317.1 of the Civil Code of the Russian Federation for this amount for the period from the 11th to the 20th, as well as interest for the use of other people's funds under Art. 395 of the Civil Code of the Russian Federation, the calculation of which is based on the amount of the principal debt - 10,000 rubles and interest accrued on it under Art. 317.1 of the Civil Code of the Russian Federation for the period from the 21st to the 25th. Thus, for the period from the 21st to the 25th, the buyer also pays interest under Art. 317.1 of the Civil Code of the Russian Federation, and interest accrued on them for the use of other people's funds in accordance with Art. 395 of the Civil Code of the Russian Federation.
Summarizing the above, we note that the positions of the courts are not only different, but also contradictory in some formulations. There is currently no uniform practice on the application of Articles 317.1 and 395 of the Civil Code of the Russian Federation, and the existing decisions were made only by courts of first instance. It is necessary to wait for the formation of judicial practice at least at the level of arbitration courts of appeal and after that, depending on the goals pursued, to conclude or not to conclude additional agreements to contracts concluded before June 1, 2015, on the possibility of non-application of Art. 317.1 of the Civil Code of the Russian Federation.
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Commentary on Article 317.1 of the Code of Criminal Procedure of the Russian Federation
1. A pre-trial agreement on cooperation is an agreement between the parties to the prosecution and defense, in which these parties agree on the terms of liability of the suspect or accused depending on his actions after the initiation of a criminal case or the filing of charges (clause 61 of Article 5 of the Code of Criminal Procedure). The essence of such an agreement is that the suspect or accused undertakes to assist the investigation in solving and investigating the crime, exposing and prosecuting other accomplices in the crime, searching for property obtained as a result of the crime, in exchange for a reduction in punishment in accordance with Part. Parts 2 and 4 Art. 62 of the Criminal Code of the Russian Federation.
The basis for concluding a pre-trial agreement is the relevant request of the suspect or accused addressed to the prosecutor, and the conditions are: a) the presence of suspicion or accusation in the case in which the preliminary investigation is being carried out; b) the voluntariness of filing a petition after consultation with a defense lawyer; c) the need of the criminal prosecution authorities to obtain assistance from the suspect or accused.
2. It is necessary to note the contradiction between the content of the norms of Chapter 40.1 and the concept of a pre-trial agreement on cooperation given in the main provisions of the Code (clause 61 of Article 5), according to which this is an agreement between the parties to the prosecution and defense, in which these parties agree on the terms of liability of the suspect or the accused, depending on his actions after the initiation of a criminal case or the filing of charges. Meanwhile, the law includes not only the prosecutor, investigator, head of the investigative body, etc., as the prosecution, but also the victim, his legal representative and representative, the civil plaintiff and his representative (clause 47 of article 5). The defense is not only the accused and his defense lawyer, but also the civil defendant, his legal representative and representative, etc. (Clause 46 Article 5). However, Part 3 of Art. 317.3 itself does not require that the pre-trial agreement on cooperation be signed by not all participants in the process on the part of the prosecution and defense, but mentions its signing only by the prosecutor, the suspect or accused and his defense attorney. What is this, a gap in the regulation of Ch. 40.1 Code of Criminal Procedure or the actual position of law?
Let's see to what extent the principles of equality of the parties (Part 4 of Article 15), including the victim, as well as fairness are guaranteed by the procedure provided for in this chapter. The legitimate substantive interest of the victim usually consists of imposing a fair punishment on the perpetrator and full compensation for the harm caused by the crime. In turn, the fairness of the imposed punishment depends on its compliance with the nature and degree of social danger of the crime, the circumstances of the case and the identity of the perpetrator (Part 1 of Article 6 of the Criminal Code). Confession, active assistance in solving and investigating a crime, exposing and prosecuting other accomplices in a crime, searching for property obtained as a result of a crime - i.e. everything that constitutes the subject of cooperation of the accused with the state bodies of preliminary investigation is considered as mitigating circumstances (clause “and” part 1 of article 61, part 2 of article 62 of the Criminal Code). One could assume that these actions indicate real (moral) repentance of the accused and, as a result, lead to a real reduction in the degree of his social danger, up to its complete loss. However, attention is drawn to the fact that the law does not at all require the accused, with whom a cooperation agreement is concluded, to necessarily admit guilt, repentance, etc., but is satisfied only by his willingness to cooperate. Therefore, another, more realistic explanation, apparently, is that the state, in exchange for assistance provided, simply forgives the perpetrator (shows leniency towards him) - partially or completely - which serves as the basis for either a significant reduction in the punishment (from half to two-thirds of the maximum sanction for the corresponding article of the Criminal Code), or for passing a sentence with the release of the convicted person from serving the sentence (Part 5 of Article 317.7 of the Criminal Procedure Code, Article 80.1 of the Criminal Procedure Code).
However, one cannot fail to take into account that among the goals (purposes) of criminal proceedings, the law names, first of all, the protection of the rights and legitimate interests of individuals and organizations that have suffered from crimes (Part 1 of Article 6 of the Code of Criminal Procedure). This provision is by no means accidental - it follows from the priority of human rights over the interests of the state, proclaimed by the Constitution of the Russian Federation. In the Russian Federation, as a rule-of-law state, a person, his rights and freedoms are the highest value, and the recognition, observance and protection of the rights and freedoms of man and citizen is the responsibility of the state; the rights and freedoms of man and citizen in the Russian Federation are recognized and guaranteed in accordance with generally accepted principles and norms of international law and in accordance with the Constitution of the Russian Federation, they determine the meaning, content and application of laws and are ensured by justice (Articles 1, 2, 17 and 18). According to Art. 52 of the Constitution of the Russian Federation, the rights of victims of crimes and abuse of power are protected by law; The state provides victims with access to justice and compensation for damage caused. This right is one of the inalienable constitutional rights of man and citizen, and in the Russian Federation laws should not be issued that abolish or diminish the rights and freedoms of man and citizen (Articles 17, 55 of the Constitution of the Russian Federation), including, obviously, the rights victims. At the same time, the concept of access to justice is not formal, which means for the victim not just the right to be present during judicial procedures, but the opportunity to declare and defend his position and protect his own rights and interests on the basis of complete equality and with the greatest efficiency both in court and in during the pre-trial preparation of the case. Consequently, the measure of the social danger of a crime that “falls on the victim” cannot be extinguished only through the forgiveness of the perpetrator (full or partial) by the state, without the participation of the victim in a transaction on cooperation, who would have a real opportunity to put forward his own conditions for reconciliation or at least to reduce the punishment for the perpetrator. In other words, taking into account the above-mentioned legal provisions, the state is not authorized to forgive the perpetrator not only “for itself”, but also “for the victim”, without involving the latter in discussing the terms of the cooperation agreement and concluding it behind his back. Otherwise, it would mean a significant restriction of the victim’s right of access to justice.
The Constitutional Court of the Russian Federation indicated that from the provisions of the Constitution of the Russian Federation and the corresponding provisions of the Universal Declaration of Human Rights (Articles 7, 8 and 10), as well as the International Covenant on Civil and Political Rights (Article 14) and the Convention for the Protection of Rights human and fundamental freedoms (Article 6, as well as Article 3 and paragraph 2 of Article 4 of Protocol No. 7 to the Convention as amended by Protocol No. 11), which, by virtue of Part 4 of Art. 15 of the Constitution of the Russian Federation are an integral part of the legal system of Russia, it follows that justice in its essence can be recognized as such only on the condition that it meets the requirements of justice and guarantees effective restoration of rights. The criminal procedural law must guarantee the effective protection of constitutional values, primarily the rights and freedoms of man and citizen, based on the principles of fairness, proportionality and legal security <1>. Implementation of general legal principles of justice and legal equality in the implementation of judicial protection in criminal proceedings, as follows from Part 1 of Art. 17, part 1 and 2 art. 19, art. Art. 46, 49, 50, 52 and part 3 of Art. 123 of the Constitution of the Russian Federation, involves providing the parties - both the prosecution and the defense - with equal procedural opportunities to defend their rights and legitimate interests. In the trial, the prosecution side, in accordance with paragraph 47 of Art. 5 of the Code of Criminal Procedure, in addition to the prosecutor, is represented, in particular, by the victim, who has his own interests in criminal proceedings. A necessary guarantee of judicial protection and fair trial of the case is the real opportunity provided to the parties to bring to the attention of the court their position regarding all aspects of the case, since only under this condition the right to judicial protection is exercised at the court hearing, which, within the meaning of Parts 1 and 2 Art. 46 of the Constitution of the Russian Federation and Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms must be fair, complete and effective. This legal position fully relates to ensuring the right to judicial protection of victims of crimes. This approach also meets the provisions of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (approved by UN General Assembly Resolution No. 40/34 of November 29, 1985), which provides that victims of crime should be provided with the opportunity to “express and consider their opinions and wishes at the appropriate stages of the judicial process.” proceedings where their personal interests are affected, without prejudice to the accused and in accordance with the relevant national criminal justice system”, and to be provided with “appropriate assistance throughout the proceedings” (paragraph 6 b, c). These requirements are also in line with Recommendation NR(85)11 of the Committee of Ministers of the Council of Europe “On the position of the victim in criminal law and procedure”, which emphasizes the need to take greater account of the requests of the victim at all stages of the criminal process in accordance with the principle of giving him the right to ask for review by the competent authority of the decision not to prosecute or the right to initiate private proceedings (preamble, paragraph 7 of section IA) <2>.
——————————— <1> See: Resolution of the Constitutional Court of the Russian Federation of May 11, 2005 N 5-P in the case of verifying the constitutionality of Article 405 of the Code of Criminal Procedure of the Russian Federation in connection with the request of the Kurgan Regional Court, complaints of the Commissioner for Human Rights in the Russian Federation, etc. // Rossiyskaya Gazeta. 05/20/2005. N 106. <2> See: Ibid.
At the same time, the Constitutional Court of the Russian Federation in Resolution No. 7-P of April 24, 2003 indicated that the state’s obligation to ensure the restoration of the rights of a crime victim does not imply giving the victim the right to predetermine the need for criminal prosecution against a particular person, as well as the limits of the responsibility assigned to this. person of criminal responsibility. Due to the public nature of criminal legal relations, such a right can belong only to the state represented by its legislative and law enforcement bodies. From this legal position it follows that the state has the right to establish grounds for assigning a more lenient punishment to a person guilty of committing a crime, in cases of his voluntary cooperation with public criminal prosecution authorities after the initiation of a criminal case or filing of charges, in order to assist the investigation in solving and investigating the crime, incriminating and prosecuting other accomplices in the crime, searching for property obtained as a result of the crime.
From the above legal positions of the Constitutional Court of the Russian Federation it follows that the participation of the victim or civil plaintiff in the procedure for concluding a pre-trial agreement on cooperation is not mandatory and the very possibility of using this agreement in a criminal case and imposing a more lenient criminal punishment does not depend on their expression of will. However, the victim cannot be deprived of his constitutional right to judicial protection and restoration of violated rights and interests - neither the volume nor the degree of guarantee of these rights to the victim can depend on whether the state has exercised its power to carry out criminal prosecution in full or it mitigated criminal liability, providing for the imposition of a more lenient punishment upon the conclusion of a pre-trial cooperation agreement. (Determination of the Constitutional Court of the Russian Federation dated November 2, 2011 N 1481-О-О on the complaint of citizens V.S. Kovalchuk and T.N. Kovalchuk for violation of their constitutional rights by part two of Article 317.6 of the Code of Criminal Procedure of the Russian Federation.) On the right of the victim to object to consideration in a special procedure of a criminal case in which a pre-trial cooperation agreement was concluded, see com. to Art. 317.7.
3. An analysis of the norms of the Code of Criminal Procedure and the Criminal Code shows that the application of the institution of a cooperation agreement under the legal regulation provided by the Federal Law of June 29, 2009 N 141-FZ, may encounter serious legal difficulties, if at all possible without amending the Law. The fact is that in accordance with Part 5 of Art. 317.7 of the Code of Criminal Procedure, the judge makes a guilty verdict and taking into account the provisions of part 2 and 4 of Art. 62 of the Criminal Code. Moreover, in Part 2 of Art. 62 of the Criminal Code provides that in the event of concluding a pre-trial agreement on cooperation in the presence of mitigating circumstances provided for in paragraph “i” of Part 1 of Art. 61 of the Criminal Code, the term or amount of punishment cannot exceed half the maximum term or amount of the most severe type of punishment, only in the absence of aggravating circumstances. However, according to Art. 63 of the Criminal Code, aggravating circumstances include, for example, such as: the occurrence of grave consequences as a result of the commission of a crime (clause “b”); committing a crime as part of a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (clause “c”); particularly active role in the commission of a crime (clause “d”); committing a crime based on political, ideological, racial, national or religious hatred or enmity, or based on hatred or enmity against any social group (clause “e”); committing a crime out of revenge for the lawful actions of other persons, as well as in order to hide another crime or facilitate its commission (clause “e.1”); committing a crime against a person or his relatives in connection with the performance of official activities by this person or the performance of a public duty (clause “g”); committing a crime with the use of weapons, ammunition, explosives, explosive or simulating devices, specially manufactured technical means, toxic and radioactive substances, medicinal and other chemical and pharmacological preparations, as well as with the use of physical or mental coercion (clause “k” ) etc. Taking into account the conceptual focus of the institution of cooperation agreement on countering organized forms of crime, on uncovering and investigating contract killings, banditry, drug crimes, corruption <1>, the named aggravating circumstances are typical and are found in almost all cases in which apply this innovation. Thus, the presence in Part 2 of Art. 62 of the Criminal Code of such a condition for concluding an agreement and imposing a reduced sentence as the absence of aggravating circumstances, practically blocks the application of the norms of Chapter. 40.1 of the Criminal Procedure Code as it relates to the largest number of crimes, namely those for which the criminal law does not provide for life imprisonment or the death penalty.
——————————— <1> See: Explanatory note of the State Duma Committee on Civil, Criminal, Arbitration and Procedural Legislation to the draft Federal Law “On Amendments to the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation "(on the introduction of a special procedure for making a court decision when concluding a pre-trial cooperation agreement).
At the same time, there is a paradox, which consists in the fact that if a crime is punishable by life imprisonment or the death penalty, then in order to conclude an agreement on cooperation and, accordingly, the non-application of these types of punishment, the current law no longer establishes such a condition as the absence of aggravating circumstances (h 4 Article 62 of the Criminal Code). Moreover, for persons who have committed these especially serious crimes, the possibility of complete release from serving their sentence is not formally excluded (Part 5 of Article 317.7 of the Criminal Procedure Code, Article 80.1 of the Criminal Code). Such a situation is not consistent with the requirements of fairness, legal proportionality and certainty.
In our opinion, in Part 4 of Art. 62 of the Criminal Code should be urgently amended by analogy with Part 4 of Art. 65 of the Criminal Code, indicating that in cases where a sentence is passed taking into account the cooperation agreement executed by the accused, aggravating circumstances are not taken into account by the court, or at least may not be taken into account.
4. Within the meaning of the norms of Ch. 40.1 the conclusion of a pre-trial cooperation agreement is allowed only during the preliminary investigation and is impossible when conducting an investigation in the form of an inquiry.
5. The grounds for the investigator’s refusal to satisfy the request are not specified in the law. Moreover, such a refusal, unlike a decision to grant a petition, does not require its prior approval by the investigator and the head of the investigation. However, it seems that the discretion of the investigative authorities in the event of refusal to satisfy this request cannot be determined solely by their ideas about the advisability or inexpediency of concluding such an agreement. Due to the public nature of the legal regulation of a cooperation agreement, a promise on the part of a suspect or accused to assist the investigation in solving and investigating a crime, exposing other accomplices in a crime, or searching for property obtained as a result of a crime, can be rejected, in our opinion, only on the basis of its obvious falsity or unreliability, or due to obvious belatedness, when the crime has already been fully disclosed, all accomplices have been identified, completely exposed, etc. In other words, the conclusion of a cooperation agreement, in the absence of information about the presence of the above obstacles, should, in our opinion, be considered as the right of the accused (suspect) and, accordingly, the obligation of the investigator and prosecutor, whose discretion is thus not free, but discretionary nature.
6. When applying the institution of a pre-trial cooperation agreement, the question may arise about its relationship with the institution of termination of criminal prosecution due to the active repentance of the suspect or accused (which may be limited only to one’s own crime and does not necessarily imply assistance in solving other crimes). So, in part 2 of Art. 28 of the Code of Criminal Procedure establishes that the termination of criminal prosecution of a person in criminal cases of grave or especially grave crimes in the presence of active repentance of the person is carried out in cases specifically provided for by the relevant articles of the Special Part of the Criminal Code. However, the termination of criminal prosecution against suspects or accused in accordance with the conditions named in the notes to these articles is the absolute responsibility of the preliminary investigation authorities and the court, and this may occur regardless of the actual (moral) repentance of the person or his assistance in solving and investigating the crime, exposing other accomplices, search for stolen property, etc. So, for example, a person who voluntarily or at the request of the authorities released a hostage is exempt from criminal liability if his actions do not contain another crime (note to Article 206 of the Criminal Code). At the same time, when taking actions in fulfillment of a cooperation agreement (which, as a rule, indicate actual repentance to a greater extent), the accused can usually only count on a reduction in punishment. It appears that the presence of the grounds implied in Art. 28 of the Code of Criminal Procedure and those named in the notes to the relevant articles of the Criminal Code, a cooperation agreement should not be concluded, but a decision should be made to terminate criminal prosecution.
7. According to part 4 com. article, the investigator’s decision to refuse to satisfy a request to conclude a pre-trial agreement on cooperation can be appealed by the suspect or accused, his defense attorney to the head of the investigative body. This, however, cannot cancel the right of the suspect or accused and his defense attorney to appeal the investigator’s decision to the court in accordance with Art. 125 of the Code of Criminal Procedure, according to which all decisions and actions (inaction) of the investigator, the head of the investigative body and the prosecutor, which can cause damage to the constitutional rights and freedoms of participants in criminal proceedings or impede citizens’ access to justice, can be appealed to the district court at the place where the preliminary investigation was conducted. The constitutional rights that may be considered the object of violation here are the right of everyone to freely seek, receive, transmit, produce and disseminate information in any legal way, including in such a way as the implementation of a concluded cooperation agreement; the right to state protection of rights and freedoms and the right of everyone to protect their rights and freedoms by all means not prohibited by law (Part 4 of Article 29, Article 45 of the Constitution of the Russian Federation). The Constitutional Court of the Russian Federation, in Resolution No. 5-P of March 23, 1999, recognized the need to provide interested persons, even during the preliminary investigation of a criminal case, with the opportunity to appeal to the court with a complaint against the actions and decisions of the inquirer, investigator or prosecutor, if they not only affect the actual criminal case. procedural relations, but also give rise to consequences that go beyond their scope, significantly limiting the constitutional rights and freedoms of the individual. The Constitutional Court proceeded from the fact that postponing the verification of the legality and validity of such actions and decisions until the completion of the preliminary investigation in the criminal case and until it is sent to the court with an indictment - so that such verification is carried out during the trial of the case, - may cause damage to the rights and freedoms of citizens, the compensation of which in the future will be impossible <1>. Considering that the cooperation agreement is pre-trial and can be concluded only before the announcement of the end of the preliminary investigation (Part 2 of the article), compensation for the harm to the interests of the accused caused by the unlawful refusal to conclude such an agreement when the case is already in court would be impossible.
——————————— <1> See: Collection of legislation of the Russian Federation. 04/05/1999. N 14. Art. 1749.
What about taxation?
This issue remains open for contracts concluded before July 31, 2016. The debtor’s obligation, without additional requirements from the creditor, to calculate and pay interest under Art. 317.1 of the Civil Code of the Russian Federation raises the question of taxation of these amounts. At the moment, no explanations have been provided on this issue, which significantly complicates the life of entrepreneurs.
It is assumed that in order to recognize expenses, a debtor using the accrual method must be guided by clause 1 of Art. 272 of the Tax Code of the Russian Federation. In accordance with this provision, expenses accepted for tax purposes are recognized as such in the reporting (tax) period to which they relate, regardless of the time of actual payment of funds and (or) other form of payment, and are determined taking into account the provisions of articles 318-320 Tax Code of the Russian Federation. In this case, expenses are recognized in the reporting (tax) period in which these expenses arise based on the terms of the transactions.
The creditor should be guided by clause 1 of Art. 271 of the Tax Code of the Russian Federation, according to which income is recognized in the reporting (tax) period in which it occurred, regardless of the actual receipt of funds, other property (work, services) and (or) property rights (accrual method).
At the moment, it is not clear how the tax office will identify unaccounted amounts of interest accrued in accordance with Art. 317.1 of the Civil Code of the Russian Federation, because the debtor’s obligation to pay interest follows only from the terms of the agreement. Practice will answer these questions.
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