Doctor of Law, Professor of Department of international private, commercial and civil law
of Kyiv National University of Trade and Economics
LIABILITY FOR VIOLATION OF MONEY OBLIGATION:
THE GUARANTEES OF JUSTICE
Background. Peculiarities of various remedy mainly determined by the subject, content of violated relationships and legal status of their participants. Only proper consideration of these factors in totality, combined with the observance of the fundamental postulates of the rule of law can provide high efficiency of the legal mechanism for regulation civil relations, including those arising from the application of liability for breach of monetary obligations.
Analysis of recent researches and publications. The issue of liability for breach of money obligation is now the subject of lively scientific debate. However this context is not usually comprise some important aspects related to the recognition or denying the possibility of introducing special mechanism for applying sanctions under art. 625 Civil Code of Ukraine (inflation losses compensation and payment three percents per annum) given special legal status of consumer as probable debtor, practice of the European Court of Human Rights and requirements of justice and rule of law.
The aim of the presented paper is to determine the guarantees of observing the principle of justice in the application of liability under art. 625 Civil Code of Ukraine in relations with participation of consumers and in the case of improper performance of debtor obligation arising from the judgment about damages.
Results. Even in the absence of special rules, in the view of implementation the principles of fairness, reasonableness and good faith as primary task of justice, the national courts should reject any attempt to impose on consumers clearly excessive, unfair property sanctions.
There is important to consider that established in the Law of Ukraine «On consumer credit» restrictions haven’t a general nature and therefore not directly applicable to other types of consumer relations. Moreover, the same rule about the maximum amount of fines does not eliminate the problem of determining the total liability of the debtor while simultaneous application the penalty and interests per annum.
As effective (and therefore applicable by virtue of direct effect of the principle of reasonableness) remedy that is able to prevent deterioration of the moral status of the victim and to keep the actual value of the awarded compensation can be recognized debtor’s obligation to pay interests per annum and inflation losses caused by delay in payment compensation for inflicted to creditor material and moral damage.
Conclusion. It is appropriate to set in domestic legislation alternative nature of the two kinds of content related compensation and property sanctions – with the ability to recover from the debtor either established in the contract penalties (with formulating the presumption of choice by the parties of this method of protection, if such agreement is not afflict consumer’s rights compared to the possibility of recover inflationary losses and statuary interests), or directly sanctions under art. 625 Civil Code of Ukraine.
Keywords: monetary obligation, liability, justice, penalty, interests per annum, consumer, European Court of Human Rights.