Seed on credit when it starts and ends. What is the statute of limitations on a credit card. How to behave in a situation if collectors begin to pester you with calls demanding money

The statute of limitations (let's call it SID) is the time during which the bank has the opportunity to sue a negligent borrower.

It is worth considering that the court will accept a claim from a credit institution regardless of whether the deadline has expired (clause 1, article 199 of the Civil Code of the Russian Federation). Therefore, if in your opinion the time of the bank has passed, you should definitely declare this before a decision is made.

The statute of limitations for a loan

Some borrowers do not know what the statute of limitations for a loan is, others think that the statute of limitations is counted from the moment the loan agreement is opened. This is not true. P. 1, Art. 200 of the Civil Code of the Russian Federation states that the SID starts to go from the day the bank found out about the delay. Clause 2 states that for obligations with a specific deadline for fulfillment, the IIA begins to flow at the end of this period.

It should be noted that until recently, even the decisions of judges on this issue differed: sometimes they counted the period from the date the contract ended, sometimes from the date the last payment was made, and sometimes from the day the official letter was sent to the borrower about the repayment of the delay.

Resolution of the Plenum of the RF Armed Forces No. 43 dated September 29, 2015 put everything in its place. It states that, based on the meaning of Art. 200, the countdown of the limitation period for a debt that, according to the agreement, must be paid in parts, begins to be calculated separately for each such part. That is, the statute of limitations for overdue payments, interest, penalties, etc. is calculated separately for each outstanding contribution.

When does the statute of limitations for a loan start? Example: according to the agreement, the loan repayment date is every 12th day. The client has stopped making payments since November 12, 2016. In this case, the AID for the first overdue payment will begin on November 12, 2016, for the second - on December 12, 2016, for the third - on January 12, 2018, etc.

If the bank has filed a claim only for the recovery of the principal debt, then the AID for the remaining payments (for example, for the payment of a penalty) continues to go. At the same time, after the expiration of the limitation period for the main requirement (clause 1 of article 207 of the Civil Code of the Russian Federation), the period for writing off the debt on the loan also expires for additional requirements (that is, forfeit, interest, collateral, etc.). But if it was determined by the agreement that interest is paid later than the principal debt, then the limitation period for them is considered separately and does not depend on the end of the AID on the principal amount of the loan.

Suspension and break of time

Do banks write off debts on loans? The flow of the LED is suspended:

• if the filing of a claim was prevented by force majeure;
• as a result of a legal moratorium (i.e. delay);
• if the debtor is in martial law;
• upon suspension of the law (or other legal document) governing these relationships.

If the parties resorted to out-of-court settlement of the dispute, then the period is suspended for the duration of this procedure (or for six months, if there is no deadline). From the time of the end of the reason for which the suspension was made, the limitation period will continue to run.

Is it possible to write off a debt on a loan or take a break? A break in the flow of the IID occurs if the borrower performs actions that indicate that he recognizes the debt (Article 203 of the Civil Code of the Russian Federation). In accordance with the Decree of the Plenum of the RF Armed Forces No. 43, such steps can be:

• recognition of the claim;
• a change in the contract, from which it follows that the borrower accepts the debt;
• client's statement about changing the terms of the contract (for example, deferred payments);
• an act of reconciliation of mutual settlements, sealed with the signature of the bank.

But if a person simply responded to the bank's claim and did not indicate that he was responsible for this debt, then such a response is not considered recognition, so there will be no break.

Also, if the client acknowledged only part of the debt, including making a periodic payment, this does not mean that he agrees with the debt as a whole. That is, this contribution cannot be a reason for interrupting the flow of AID for the rest of the contributions.

When the steps indicating the recognition of the debt were made by the representative of the borrower, the IID is interrupted only if he had the necessary authority (Article 182 of the Civil Code of the Russian Federation). If the debtor simply does not take any action and does not sign anything, then the limitation period is not interrupted!

Please note that after the break, the LED does not continue, but starts again, that is, the time that has passed before the break will not be counted in the new period!

Example: the borrower had to pay the next payment on 04/15/2016, but overdue and did not pay for several months. Thus, from April 15, 2016, the limitation period began. On September 15, 2016, a person came to the bank and wrote an application for an installment payment, but then stopped paying again. In this case, the three-year TID will start anew from 09/15/2016.

Important! With all suspensions, the limitation period (clause 2, article 196 of the Civil Code of the Russian Federation) cannot exceed 10 years.

Can a bank claim a debt after the statute of limitations has expired?

Can the court write off the loan debt if the statute of limitations has expired? In most cases, the bank does not wait for the deadlines to pass and sues in a timely manner. But even if the AID has already passed, the borrower is unlikely to be left alone. Probably, employees of the credit institution will call, come, write letters, try to put pressure on guarantors or relatives. But the bank, most likely, will no longer sue, since if the debtor declares that the limitation period has passed, the court will still refuse to initiate a case.

When the lender decides that the debt is unlikely to be repaid, he can cede the problem loan to debt collectors. It is no secret that the methods of the latter often go beyond what is permitted, as there are a lot of eloquent reviews on the Internet.

There are a lot of articles on the net about the need to allegedly withdraw consent to the processing of your personal data, and the borrower will be left behind. Actually, it won't do anything. According to Art. 9 of the Federal Law No. 152, even with a revocation, the bank or collectors have the right to continue processing personal data if this is necessary to exercise their legitimate rights and interests. But few people know that Federal Law No. 230 was adopted not so long ago, which clearly stipulates who, when and how can “get” the debtor.

So, the collector does not have the right to come to the borrower more than once a week and call more often:

• 1 time per day;
• 2 times a week;
• 8 times a month.

It is forbidden to threaten, use force, harm health or property, mislead a person or put pressure on him, etc. It is forbidden to report debts to third parties, disclose information about the client himself or his debts. To avoid such a situation, soberly assess your strengths. Right now you can use the loan interest calculator and find out the amount of the monthly payment and the amount of overpayment on the loan.

Important! By law, the borrower may refuse to communicate with the lender or the collector. To do this, you must send him an application by registered mail or through a notary, or simply hand it over against receipt.

Good afternoon! For credit cards, the AID is actually counted from the last payment, since the limit is always renewable, which means that when repaying any part of the previously used funds, in case of replenishment of the account, the borrower again increases the free (unused) debt limit. The debt limit determines the maximum allowable amount of the borrower's debt to the bank, upon repayment of which the borrower can again use credit funds. Thus, the client himself chooses when and what amounts to take and when to repay. Therefore, when spending funds by the client, the bank establishes a reporting period during which credit funds were used, for the use of which, according to the Conditions, the borrower pays the interest accrued on them. This means that the bank has a reason to consider a violation of the obligation is the expiration of the period of the limit, since there are no obstacles to the lump-sum payment of the amount of funds used.

​The cardholder is obliged on a monthly basis not later than the date of payment to deposit on the card the amount of the mandatory payment, which is calculated as a % of the principal amount, but not less than ... rubles, plus the entire amount of exceeding the credit limit, interest accrued on the amount of the principal debt as of the date of the report, forfeit and commission for the reporting period.

A monthly report on the card containing information on the date and amount of the mandatory payment, the available limit and total debt as of the date of the report, information on all card transactions made on the account during the reporting period, is sent to the borrower according to the chosen by him and specified in the application for a credit cards to the way of communication with the client.

​According to the legal position set out in paragraphs 24, 25 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated September 29, 2015 N 43 "On some issues related to the application of the norms of the Civil Code of the Russian Federation on limitation of actions", within the meaning of paragraph 1 Article 200 of the Civil Code of the Russian Federation, the limitation period for a claim arising from a violation by one party of the contract of the conditions for payment for goods (works, services) under parts, begins with respect to each individual part. The limitation period for claims for overdue time payments (interest on borrowed funds, rent, etc.) is calculated separately for each overdue payment.

Thus, the statute of limitations for claims for
debt collection on a credit card is calculated for each overdue mandatory monthly payment for the relevant period, since the contract and the terms of credit card servicing provide for debt repayment by monthly mandatory payments.

Insist on this position in court.

When debt is formed on credit obligations, situations arise when the funds transferred to the borrower can be returned only through the court. Meanwhile, there is a statutory period during which filing a claim is possible. If in relation to a conventional cash loan, the starting point is fixed in the clauses of the contract from the end of the lending period, then the limitation period for a credit card is determined taking into account many nuances.

The procedure for establishing a limitation period

There is a standard limitation period that applies to debt obligations to a bank. It is 3 years, but the law provides for the possibility of extending the period when the bank can submit its claims for return through the court.

The term "statute of limitations" is explained by Article 196 of the Civil Code as a time period during which the creditor has the right to demand payment of the debt in court. Article 200 of the Civil Code of the Russian Federation, the beginning of the limitation period is determined by the date of expiration of the contract. The starting point can be changed if the bank issued a demand loan and informed the debtor of the need to completely close the credit line. In addition, the law makes it possible to extend this period under certain circumstances.

Features of the definition

It is necessary to distinguish between the concepts of “limitation period for a loan” and “issuance of the funds themselves”. Neither the duration of lending under the agreement, including express loans, nor the time elapsed since the receipt of money, affect prescription. Of fundamental importance will be the established and confirmed fact of contact between the borrower and the creditor for the purpose of repaying the debt.

Courts of first instance may also take as a starting point the end date of credit relations under the agreement. Such decisions can be challenged in the highest courts by filing an appeal. However, the statute of limitations for credit cards is defined differently. Since a credit card does not have a strictly defined credit expiration date, it is impossible to apply a general definition scheme.

The general rule by which a credit card statute of limitations is set is related to the day the last payment from the borrower is made. Under standard conditions, the bank sends the first request to close the credit line after 90 days from the date of the last installment. The statute of limitations will apply for a period of three years after formal contact between the parties. A card on which no payment has been made on account of repayment will be determined by the day the funds were withdrawn from the credit account.

The subtleties of the procedure for determining prescription

To avoid discrepancies, prescription should be determined from the date of delivery to the borrower of a registered letter from the lender demanding full repayment of the debt with interest until the expiration of the loan period.

It should be noted that the transfer of debt to another organization will not affect the period remaining until the statute of limitations expires.

The following circumstances may be used for an extension:

1. Each case of communication with the borrower resets the term for the lender, allowing the case to be considered in court over the next 3 years.
2. The application for refinancing/restructuring received from the borrower also extends the time allotted for filing a claim.
3. Any contribution to pay the debt, even for the smallest amount, also extends the term.
4. The use of preferential holidays received by the borrower from the bank also leads to the resetting of prescription.
5. The fact that the borrower confirms the notice demanding repayment.
6. A recorded telephone conversation between a bank employee and a debtor.

The duration of the period during which the creditor retains the right to claim the debt through the court, except for the revision of the starting point of reference, cannot be changed, regardless of the type of agreement and its terms.

Even if the loan agreement has clauses that determine what limitation period is established between the parties, such an agreement, by agreement of the parties, is recognized as void.

To challenge the prescription on the part of the creditor, documentary evidence of the fact of communication with the client will be required. Neither simple visits to the borrower's branch (without discussing the topic of repayment of the loan), nor a telephone conversation (if it is not recorded) can be attributed to such cases.

The reason for the suspension of the period of possible filing of a claim with the court may be one of the following situations:

1. Force majeure circumstances in which the filing of a claim by the creditor became impossible (natural disasters, strikes, military operations).
2. The imposition of a moratorium by the authorities.
3. Urgent service of the borrower in the Armed Forces of the Russian Federation for the entire period.

When filing documents with the court, a client who has made multiple delays must apply to the court with a petition for the expiration of the statute of limitations. If the court establishes circumstances that allow recognition of the expiration of the statute of limitations, all claims against the borrower will be removed in court. The time for filing a petition is the period of the trial.

If the debtor cannot be present in court himself, he may apply through his representative on the basis of a notarized power of attorney. If this is not done, the court will not determine the limitation period for the credit card, which increases the chances of the creditor for a positive decision in the case. Thus, in order to recognize the period for filing claims for a debt as expired, a statement from the client-debtor is required.

1. The client is not recommended to answer calls from the bank, receive notifications from the creditor. This measure is possible only if the impossibility of a full repayment of the debt to the bank for the borrower is obvious. It should be noted that subsequently, no reputable credit office will no longer provide a loan to a client with a "tarnished" reputation.
2. When the period of the right to litigation has expired due to the fault of the bank employees, they may continue to harass the debtor by phone in the hope of returning the funds lent by the creditor. If the borrower has doubts about the legitimacy of such a requirement, it is recommended that you first consult with a lawyer.
3. Active aggressive actions of collectors can be stopped by contacting the police. An application to the prosecutor's office will help establish the illegality of the measures taken by collectors. If the collection agency understands that the debtor is well informed about his rights and knows about the possibility of recognizing the statute of limitations as expired, it will stop bothering the former client of the bank.
4. By law, the expiration of the statute of limitations does not prohibit the bank from communicating with the client in order to receive a debt. In this case, the citizen has the right to withdraw his personal data by submitting an official application to the bank.

The law unequivocally determines whether there is a limitation period, even when the creditor does not bother the debtor for a long time. The danger of the bank's inaction lies in the fact that the creditor deliberately waits until the amount of penalties and fines for overdue payments becomes significant, and only then goes to court with a legal claim. If the statute of limitations has not yet expired, the chances of a verdict in the interests of the bank are high. By allowing delays and accumulating debts gradually, the client must be aware of the tough measures that the bank can subsequently apply through its legal service.

If the judge finds that the borrower originally intended to defraud the bank by obtaining loan funds and not planning to repay, the debtor's sentence can be severe. There is practically no chance of getting forgiveness for debts from those who deliberately deceived the bank. In the future, the decision of the judge is transferred for execution to the bailiffs, who seize the property of the guilty citizen with its further implementation in payment of the debt.

Different credit organizations have different approaches to the issue of debt recovery. Each of the banks has its own instruments of influence and schemes for working with debtors. Knowing the peculiarities of the attitude towards debtors, you can prepare in advance for possible consequences and exclude negative scenarios for yourself if the limitation period on a credit card has not expired.

The following table contains a summary of the relationship of banks to debtors.

All Russian credit organizations try to resolve issues with the debtor before the limitation period expires. Oral notices by telephone, registered letters demanding early repayment, as well as the transfer of debt on a loan to collection agencies can be chosen as tools of influence. When considering the borrower's case in court, as well as his petition for recognition of the limitation period as expired, the payer's attitude to his debt obligations will be of decisive importance.

I am glad to welcome everyone to my blog. With you, Albert Sadykov, and today I would like to finish the topic of the statute of limitations. Moreover, readers have questions about its calculation.

Let me remind you that in my last article I talked about those enshrined in Chapter 12 of the Civil Code of the Russian Federation. But, as usual, in the process of applying these rules, many different questions arise. The answers to them are usually given by judicial practice. First of all, the Resolutions of the Plenum of the Armed Forces of the Russian Federation.

Previously, clarifications on the limitation period were contained in the joint Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation, the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 12, 15, 2001 No. 15/18 “On Certain Issues Related to the Application of the Rules of the Civil Code of the Russian Federation on Limitation of Actions”.

But it did not take into account the changes made to Chapter 12 of the Civil Code of the Russian Federation by Federal Law No. 100-FZ of May 7, 2013.

Let's consider the most interesting provisions of this Decree and find out what the Supreme Court of the Russian Federation said about the statute of limitations.

Beginning of the limitation period

First of all, in paragraph 1, the Plenum of the Supreme Court of the Russian Federation draws attention to the fact that the limitation period (hereinafter referred to as the SID) begins to run from the moment:

1. when a person knew or should have known about the fact of violation of his right;
2. that person learned who the proper defendant in the case was.

Moreover, the simultaneous presence of these two circumstances, and not one of them, is necessary.

Paragraph 2 establishes the rule for determining the moment of the beginning of the course of the JIA in relation to individuals who do not have full civil or civil procedural capacity. These are young children and disabled citizens.

In case of violation of their rights, the limitation period begins from the day when the circumstances specified in paragraph 1 of Art. 200 of the Civil Code of the Russian Federation, any of their legal representatives, including the body of guardianship and guardianship, found out or should have found out.

The approach is very reasonable, granting the right to protect the violated right to those for whom the law secures the ability to independently speak in court.

But the situation is not ruled out when the same legal representative performed the powers assigned to him in a clearly improper way. In this case, the missed LED can be restored:

• at the request of the person represented;
• at the request of another authorized body in the interests of the person represented.

If the right of a person who does not have full legal capacity was violated by the legal representative himself, then the SID for filing a claim for such a violation is calculated from the moment:

• when the violation becomes known to another legal representative acting in good faith (for example, the other parent);
• when the represented person became aware or should have become aware of the violation of his rights and he became able to defend the violated right in court, that is, from the moment of the emergence or restoration of full civil or civil procedural capacity.

As for legal entities, in accordance with clause 3 of Decree No. 43, the SIA is calculated from the moment when the sole executive body learned about the violation of his rights and who the proper defendant was. Do not forget that it can consist of several persons.

With public law entities, the problem of limitation is resolved as follows. Authorized bodies act on their behalf. Accordingly, as pointed out by the Plenum of the Supreme Court of the Russian Federation, the limitation period is calculated from the day when they learned or should have learned about the violation of the right of a public legal entity.

The Plenum does not determine the general criteria for determining the moment when the authorized body did not know, but should have known about the violation of its right. Although this approach was previously used by the Economic Disputes Board of the Supreme Court of the Russian Federation (Determination of the Supreme Court of the Russian Federation of July 14, 2015 in case No. 305-ES14-8858, A40-161453 / 2012). Instead, the most common circumstances indicating a violation of the rights and interests of a public legal entity are listed:

• transfer of property to another person;
• the commission of actions indicating the use by another person of the disputed property.

Paragraph 8 of Decree No. 43 specifies the application of the limiting "objective" 10-year limitation period. This term begins to be calculated from the date of violation of the right, regardless of whether:

• whether the person whose right was violated knew at that moment about such a violation or not;
• whether it knew who was the proper defendant or not.

This 10-year period applies only at the request of a party to the dispute. Up to this point, the court is considering the case in the usual manner.

It is also noted that the plaintiff cannot be denied protection of the right if before the expiration of the 10-year period there was an appeal to the court in the prescribed manner or the obligated person committed actions indicating the recognition of the debt. Below, we will discuss exactly what actions indicate this.

An important point is that the 10-year period does not apply to claims that are not subject to limitation by virtue of law (for example, Article 208 of the Civil Code of the Russian Federation).

The procedure for applying the limitation period

This section begins with the provision that the limitation period is subject to application only at the request of the party to the dispute, which bears the burden of proving the circumstances indicating the expiration of the JIA. Typically, this is the defendant.

If an improper person declares the application of the limitation period, then it has no legal significance and the case will be considered further in the manner prescribed by the procedural legislation. The application of a third party on the application of the limitation period, as a general rule, does not entail its application.

An exception, according to paragraph 10 of Decree No. 43, is the situation when, upon satisfaction of a claim against the defendant, the latter may file a recourse claim or claim for damages already against a third party.

Since Chapter 12 of the Civil Code of the Russian Federation does not contain any special requirements for the form of an application for the application of the limitation period, it can be made both in writing and orally at any stage of the case before a decision is made. In the appellate instance, it is possible to make an appropriate statement if he proceeded to consider the case according to the rules of procedure in the first instance (part 5 of article 330 of the Code of Civil Procedure of the Russian Federation, part 6.1 of article 268 of the APC of the Russian Federation).

The plaintiff must prove the circumstances indicating the interruption or suspension of the limitation period.

Restoration of the AIT is possible only in exceptional cases and only in relation to an individual due to circumstances related to his personality. The deadline missed by a legal entity, as well as an individual entrepreneur, according to the requirements related to the implementation of entrepreneurial activities by him, is not subject to restoration (clause 12).

Attention should be paid to the conditions for the suspension of the JI when considering the case in court (paragraph 14). Even if the court subsequently applies other rules of law than those referred to by the plaintiff, or the plaintiff changes the method of protecting the right, this does not affect the suspension of the limitation period. It stops flowing from the moment it goes to court.

With the increase in claims, the situation is interesting. As a general rule, as the Plenum of the Supreme Court of the Russian Federation points out, an increase in requirements for determining the moment from which the limitation period ceases to run does not affect either. Unless the increase in claims is related to debts for other periods.

This applies to cases where the obligation provides for periods of payment, periodic payments, interest.

For example, the plaintiff initially filed a claim for the recovery of debt for one delivery period. While the case has reached the main court session, the buyer has a delay in payment for the next delivery period and the plaintiff (supplier) increases the claims. In this case, the AIT on the amended requirements ceases to flow from the date of the statement of precisely these requirements, and not the original ones.

We finally got to paragraph 20 of Resolution No. 43. It reveals the content of Art. 203 of the Civil Code of the Russian Federation on actions indicating the recognition of a debt. Their specification is necessary to determine the circumstances that lead to the interruption of the SID. These actions are:

• recognition of the claim;
• amendment of the contract by an authorized person, from which it follows that the debtor recognizes the existence of a debt, as well as the debtor's request for such a change in the contract (for example, a deferment or installment payment);
• an act of reconciliation of mutual settlements, signed by an authorized person.

A response to a claim may not necessarily contain an acknowledgment of a debt. Therefore, if such recognition is not explicitly mentioned in it, then the JID is not interrupted.

Recognition of a part of the debt, including by partial payment, as a general rule, does not indicate recognition of the debt as a whole.

This position is the opposite of that expressed in the no longer in force Decree No. 15/18. Now the Plenum of the Armed Forces of the Russian Federation proceeds from the fact that the limitation period for partial payment of the debt is not interrupted.

The latter indicated that the recognition of a debt is evidenced by the recognition of a partial payment of the debt.

Example

Under the supply agreement, the buyer received goods in the amount of 100,000 rubles. But it requires a commensurate price reduction to 60,000 rubles. due to inadequate product quality. The supplier does not recognize such a requirement.
The limitation period runs from the moment the buyer fails to pay. Two months later, the buyer paid 60,000 rubles. The question is: is the statute of limitations interrupted?

Based on Decree No. 43, then it is not interrupted. The Plenum considered that this requires an explicit recognition of the debt in full.

When the debtor has partially paid the debt and expressly indicated that he recognizes the debt in the remaining part, then in this case the right of the creditor will be considered violated from the moment of non-payment of the remaining part of the debt.

In other words, the debtor says: “Creditor, here’s 60,000 rubles for you, I know that I owe another 40,000 rubles, I’ll pay them to you later, I don’t have any money right now. I'll pay when they show up. And when they will appear - I do not know ".

The debtor has paid a part, admitted that he still owes the creditor, but is not going to pay yet for one reason or another. In this situation, the debtor violated the right of the creditor when he refused to pay the remaining part of the debt and the term is interrupted.

If the debtor did not recognize the debt, but paid a certain amount, believing, for example, that the rest of the amount presented for payment is unreasonable, then from his point of view there is no violation of the creditor's right.

It turns out another situation: “Creditor, here’s 60,000 rubles for you, and beyond that I don’t owe you anything. For those 40,000 rubles that you keep telling me, the price of the goods should be reduced due to its inadequate quality..

The situation is difficult. On the one hand, I paid part of it, it seems that the term can be interrupted. But after all, in general, he did not recognize the debt and substantiated why he did not recognize it. What if the deadline is interrupted, and later it turns out that the demand for a price reduction is justified? Or vice versa, the creditor's claim for the payment of the remaining 40,000 rubles. unreasonably?

We remember that the limitation period runs from the date when the creditor found out or should have found out about the violation. But in the case when, for one reason or another, the debtor does not pay the rest of the debt and does not stipulate its recognition, the existence of a violation of the creditor's right in the remaining part in itself becomes controversial and not obvious.

In this situation, it is hardly lawful to interrupt the term and calculate it again from the moment that cannot be unambiguously determined as the moment of violation.

I explained the question in detail, I hope everything became clear with this. Move on.

If the terms of the obligation provide for its fulfillment in parts or in the form of periodic payments, and the debtor has recognized only a part of the debt or the debt for a separate periodic payment, then the AID is not interrupted for other parts or payments.

One important point - actions to recognize the debt must come from an authorized person according to the rules of Art. 182 of the Civil Code of the Russian Federation (p. 22).

Limitation period for time payments and interest

This section deals with the calculation of the limitation period for obligations and contracts involving performance in installments in the form of time payments (for example, rent) and interest (for example, on a loan).

In accordance with paragraph 24 of Decree No. 43, the limitation period for each late payment is calculated separately.

In the same way, the limitation period is calculated separately on the claim for the recovery of a penalty or accrued on each overdue payment.

According to clause 25 of Decree No. 43, recognition of the principal debt does not mean recognition of additional claims in the form of a penalty, interest under Article 395 of the Civil Code of the Russian Federation, or compensation for losses. Accordingly, with regard to these additional requirements, the LED is not interrupted, but continues to flow further.

The limitation period for a claim for payment is calculated according to similar rules.

The last point, within the framework of Decree No. 43, which is worth considering, concerns the calculation of the AIT in relation to the main and additional requirements.

Submitting a claim for payment of only the principal debt does not affect the running of the term for additional claims. If a claim is filed only for the payment of the principal debt, the limitation period for the penalty continues to run.

The limitation period for the main claim has expired - the period for the additional one has also expired. But an exception is possible.

The parties under the loan (credit) agreement may establish that interest on it is paid after the repayment of the principal debt. In this case, the IIA on the demand for payment of these interest is calculated separately and does not depend on the expiration of the term on the demand for payment of the principal amount of the loan (credit).

"Removal of corporate veils" and limitation period

In the comments to the previous article, I was asked a question about the calculation of SID in corporate relations. Specifically, when "removing the corporate cover."

A few words about this doctrine.

It appeared for the first time in the Anglo-American doctrine of law. Continental law, in particular German law, de jure does not know it in this form, but similar situations occur.

Why "lifting the corporate veil"?

The legal entity is a fiction. This is where the Anglo-American system of law comes from. This is a certain legal construction created for convenience. In reality, a legal entity, as a tangible, materialized person, does not exist.

The allocation of such a structure is caused by the need to unite among themselves not persons, but capital in order to achieve common economic goals. The classic provision, which is also contained in the Civil Code of the Russian Federation, is the limitation of the limits of liability between the corporation and the participants. The founders (participants) of a legal entity are not liable for the obligations of the legal entity, and the legal entity is not liable for the obligations of the founders (participants).

This design is the "corporate cover". Why take it off?

Although the corporation is legally separate from its owners, the latter may use this to achieve illegal goals and unjustified benefits. A legal entity, instead of being an instrument contributing to the achievement of the general economic goals of the participants, becomes a cover for committing illegal actions.

In this case, the independence of the corporation should be ignored, and for transactions legally made by the corporation itself, the personally guilty participant is liable.

In Russian practice, cases are common when a corporation suffers losses due to illegal actions of a director. In this case, the legal entity may recover these losses from the director.

A claim for this may be brought by the legal entity itself or by the participants of the legal entity.

When a claim is filed by a member of a legal entity, it is taken into account that, by virtue of paragraph 3 of Art. 53 of the Civil Code of the Russian Federation and Art. 225.8 of the Arbitration Procedure Code of the Russian Federation acts in the interests of a legal entity. The limitation period runs from the moment the participant learned or should have learned about the commission of actions (inaction) by the director that caused losses for the legal entity.

But here another problem arises - how to determine the moment when the participant should have known or learned about the violation?

You can catch on here only for the annual general meetings. At the general meeting, the director reports on the work done. In this case, it is the acceptance of the report or the expiration of the period for familiarization with it that is the starting point for the limitation period. A similar logic is expressed in the Ruling of the Supreme Arbitration Court of the Russian Federation dated June 27, 2013 No. VAS-6286/13 in case No. A40-17159 / 12-13-154 (however, it does not consider the issue of recovering damages from the director, but the issue of invalidating a major transaction).

A claim may also be filed by a participant who, at the time of the director's actions (inaction) that caused losses for the corporation, was not such. This is stated in paragraph 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 62 “On some issues of compensation for losses by persons who are part of the bodies of legal entities”. It also states that the course of the IIA begins from the day when the legal predecessor of such a participant in a legal entity (for example, the seller of a share or shares) learned about the violation on the part of the director or should have known.

The same paragraph clarifies the issue of the beginning of the limitation period when filing a claim by the legal entity itself:

“In cases where the relevant claim for damages is filed by the legal entity itself, the limitation period is calculated not from the moment of the violation, but from the moment when the legal entity, for example, represented by a new director, got a real opportunity to learn about the violation, or when the violation knew or should have known the controlling participant, who had the opportunity to terminate the powers of the director, except in the case when he was affiliated with the said director.

Despite the obvious solution to the problem, some believed that the moment when the corporation found out about the violation on the part of the director was the moment when the unscrupulous director himself found out about it.

The idea smacks of some delusion, but apparently proceeds from the direct identification of the director with a legal entity. Here we already run into a problem: is the director a body or a representative of a legal entity?

Nevertheless, the statute of limitations should begin to run from the moment when the corporation in the person of the new director learns about the violation or the participants who had a real opportunity to remove the director learned about the violation.

That's all that needs to be said about the statute of limitations for today. The topic is interesting, new questions constantly arise. Therefore, most likely, the article will be updated periodically. For example, within the framework of the same “removal of the corporate cover”, it would not hurt to consider the issue of determining the beginning of the limitation period when presenting creditors’ claims against the head of the debtor as part of the bankruptcy procedure.

That's all, I hope the article was helpful. Leave comments, repost and... see you in the next article!

Best regards, Albert Sadykov