Бумажный Электронный 100 руб.

ABSTRACT
The article analyzes the grounds and procedure for reducing the penalty in the manner of art. 333 of the Civil Code, the criteria and approaches developed by arbitration courts. Essentially, Art. 333 of the Civil Code specifies only a few general criteria: first, the penalty must be clearly disproportionate to the consequences of a breach of an obligation; and, secondly, for entrepreneurs, the reduction of the penalty must be exceptional, when its collection in full will result in the creditor receiving unreasonable benefits. The article presents different points of view on the problem of reducing the penalty. Practically all the authors note an extremely broad judicial discretion in this matter when making decisions. When a judgement is adopted on the basis of evaluation criteria, the interested party would always like that the process of making such a decision be rationalized and available for an objective evaluation. Article 333 of the Civil Code of the Russian Federation is applied not only to contractual penalties, but also to legal ones, which causes objections from some authors. Meanwhile, the nature of penalty is uniform: it is intended to compensate the losses of the creditor from improper performance of obligations by the debtor. The penalty reduction for the obligations arising from business relations is possible only in a declarative manner. In all other cases, this is possible on the initiative of the court, which, in the opinion of the author, violates the principle of adversariality of the civil process. The author in his study shows that arbitration courts ultimately rationalize the decision-making process to reduce the penalty, and this is expressed in specific concepts and rates. Based on the study of numerous arbitration cases, the author concludes the following: arbitration courts reduce penalties to the amount that is within a certain range. Any penalty in this range will be fair. The author suggests including criteria for reducing the penalty in the Civil Code of the Russian Federation.

Ключевые слова: неустойка; договорная неустойка; уменьшение неустойки; необоснованная выгода кредитора; злоупотребление правом; добросовестность; баланс интересов.
Keywords: penalty; contractual penalty; penalty reduction; unreasonable benefit of the creditor; abuse of law; good faith; balance of interests.