In the process of diverse economic relationsthere are often cases of unfair fulfillment of obligations. One of the common mechanisms for sanctioning contractual relations is the use of appropriate penalties, the main types of which are penalties, fines and penalties.
Penalty, according to the currentlegislation is a method of securing obligations. In this sense, it manifests itself in this way along with the pledge, surety, deposit, retention of property. Among the types of collateral provided, a penalty is perhaps the most common way in business practice. The definition of a penalty is given in Art. 330 of the Civil Code of the Russian Federation, where it is treated as a statutory amount of money payable by the debtor to the creditor for non-performance or improper performance of the stipulated contractual obligations.
A rather common difficulty iscalculation of the penalty taking into account the specific circumstances of non-performance of contractual relations. Here it is necessary to consider first of all the following. As a rule, the calculation of the penalty is made in accordance with the nature of those economic relations that were stipulated by the contract or which are regulated by the current legislation, if the contract is absent or does not provide for specific measures of responsibility for its improper performance. For example, for the delay in the execution of an order when performing services, the penalty is recovered in accordance with applicable law, namely art. 23 of the RF Law "On Protection of Consumer Rights". This rule provides that the penalty is paid at the rate of 1% of the service price for each day of delay. Accordingly, when making a claim, it is necessary to specify the date of commencement of the delay in the execution of the order and the date of its completion.
The variety of forms of economic activitypredetermines that there are quite a lot of forms for collecting and calculating the value of the penalty. For example, the calculation of a penalty by the value of the refinancing rate provides for knowledge of this parameter, which is set by the Central Bank. At the moment, in the Russian Federation the refinancing rate is 8% and reflects the percentage at which loans are issued. Using this parameter, you can calculate the penalty for the most diverse types of contractual relations.
For example, the calculation of penalties under the loan agreementassumes that the interest amount of the penalty is equal to the value of the currently established refinancing rate if other conditions are not defined in the contract itself. Here it is necessary to take into account the fact that if the exact term of the loan is not specified in the contract, the calculation is based on the conditional acceptance of the number of days in the month equal to 30, and the number of days in the year equal to 360.
Also, the value of the refinancing is calculated and the penalty on the loan. The formula by which the percentage of the penalty will be determined is as follows: H = DM x D x StR, where:
H - the value of the penalty, D - the number of days of delay, STR - the value of the refinancing rate.
When calculating tax penalties, the value of 1/300 of the refinancing rate is used as the base value. Accordingly, the formula takes the form: H = DM x D x 1/300 x Pp.
In accordance with Art.424 of the Civil Code the penalty is calculated under the supply agreement, the same provision is guided in the calculation of penalties for contracts of sale. A feature of this provision is that it does not require filing a claim for termination of the contract. In order to claim the penalty, there is quite enough written evidence that objectively shows that you notified the contractor of the refusal of delivery. Such evidence can serve as a receipt for sending registered letters, telegrams and other messages.
