Problematic aspects of the practice of reducing penalties in Russian civil law

Abstract

The established practice of applying Articles 330-333 of the Civil Code of the Russian Federation does not always contribute to the effective use of penalties to ensure the fulfillment of obligations. This may be due to the lack of a legal definition of "lost profit" in the law, clear criteria for the apparent disproportionality of the penalty to the consequences of non-fulfillment of the obligation, with the presence in Article 330 of the Civil Code of the Russian Federation of the evaluation category "apparent disproportionality", which the courts interpret differently, and sometimes bypassing explanations on this score of higher judicial instances. Legal uncertainty is created by the norms of Parts 1 and 2 of Article 333 of the Civil Code of the Russian Federation, which do not allow making an unambiguous conclusion about the legality of applying their provisions to reduce the legal penalty to persons engaged in entrepreneurial activity. The subject of scientific research is to identify problematic issues of law enforcement practice to reduce the penalty in accordance with Article 333 of the Civil Code of the Russian Federation. The paper uses formal legal and comparative legal analysis of judicial practice in order to formulate the author's conclusions regarding the subject of the study.Through the application of this methodology, it was established that the courts are based on the norms of Articles 330-333, 394 of the Civil Code of the Russian Federation, explanations of the Plenum of the Supreme Court of the Russian Federation No. 7 of 03/24/2016, No. 81 of 12/22/2011, acts of the Constitutional and Supreme Arbitration Court of the Russian Federation, as well as on the provisions of federal laws and other regulatory legal acts, however, the practice of applying Part 1 of art. 333 The Civil Code of the Russian Federation in relation to persons engaged in entrepreneurial activity is dichotomous, there is no uniformity. According to the results of the study, problems were identified, solutions were proposed, expressed in the consolidation in Article 333 of the Civil Code of the Russian Federation of clear grounds (criterion) for reducing the penalty in order to avoid excessively broad judicial discretion, and in fact arbitrary judicial interpretation of the apparent disproportionality of the penalty to the consequences of non-fulfillment of the obligation.