21 03 / 18

The Supreme Court of the Russian Federation explained the legal nature of statutory interest of use of borrowed funds.

The court stated that the claim for compensation arises from restitution, and such claim of a debtor in bankruptcy should be made both along with the basic claim and separately, but also in bankruptcy proceeding.Managing partner of the Law firm PARADIGMA Kliment Rusakomsky notes that disputes over the recovery of interest for use of borrowed funds from the transaction which was recognized invalid in the bankruptcy case are not uncommon in litigation practice.

“The tendency of the companies conducting business by means of credit funds leads to an increase of bankruptcy proceedings of such companies involving banks as creditors. Though the position set forth in the court ruling of the Supreme Court of the Russian Federation on 12.03.2018 № 307-ЭС17-21349 is not new (this position was stated in previous decisions of the Supreme Court on 17.08.2017 № 305-ЭС17-3817, on 19.01.2017 № 305-ЭС15-15704 (2)), however lower instances are reluctant to follow it. The Supreme Court of the Russian Federation drawn courts attention to the following essential law-enforcement aspects once again: according to the paragraph 29.1 of the resolution № 63 on 23.12.2010 claims on the interest recovery are regulated by the provisions on restitution for invalid transaction (article 1103 of the Civil code of the Russian Federation), not by the provisions on the unjust enrichment. The Supreme Court also mentioned that one year's statute of limitations on actions is to be applied in the calculation of the interest in spite of the date of transaction and the fact of awareness of unlawful nature of such a transaction”, - the expert said.

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