Review of the Supreme Court of the Russian Federation on “coronavirus” issues No. 2

The numbering corresponds to the paragraph numbering in the Overview.

General questions

Civil Law

2. This paragraph is devoted to loan agreements.

At the moment, certain categories of borrowers affected by the "anti-coronavirus" measures can apply for a grace period to pay off the loan. This possibility is provided for by Article 6 of Law No. 106-FZ and the current version of the Federal Law “On Consumer Credit (Loan)” No. 353-FZ.

In addition to the conditions expressly stated in the regulations, the Supreme Court clarifies that:

• a decrease in the borrower's income by the required 30% is expected, but the bank may request additional information from the borrower himself and from other sources in order to verify;
• the same borrower can receive a grace period first under 106-FZ, and then under 353-FZ (or vice versa), but cannot receive both at the same time;
• the debtor, regardless of the establishment of grace periods, may also refer to force majeure. For example, if the online payment system was disabled, and bank branches were closed;
• back in the first Review of the Armed Forces of the Russian Federation and emphasized that “non-working days” are not days off, therefore, the deadline for fulfilling obligations (for example, making a payment on a loan) is not transferred to the next business day. However, the Bank of Russia initially gave clarifications that were opposite in meaning, and changed its position only on April 4. Since this could confuse debtors, the Supreme Court of the Russian Federation has now indicated that non-payment of loan payments for the days from 03/30/20 to 04/03/20 is not considered late. In the future  payments must be made on time - without regard to "non-working" days.

3. The most important, unprecedented in its content, clarifications on the lease of real estate:

• The deferred payment of lease payments under 98-FZ and Government Decree No. 439 is provided retroactively - from the moment the high alert mode is introduced in the subject of the Russian Federation;
• If the tenant did not pay on time, and the landlord knew or could not have known (!) that the tenant works in one of the affected industries, he is obliged to inform the tenant himself that he has the right to defer.
• If the landlord a) did not inform the tenant of the right to a deferral; b) evaded the conclusion of an additional agreement on the postponement; c) made it clear by his behavior that he would grant a reprieve; d) did not object when the tenant silently paid as specified in Government Decree No. 439 - in all these cases, it is considered that the landlord gave a deferral on the conditions provided for by Government Decree.

The Supreme Court of the Russian Federation emphasizes that in terms of granting a deferment, agreements between the tenant and the landlord can only improve the position of the tenant in comparison with the guarantees that 98-FZ and the Government Decree give him.

4. If the tenant belongs to the affected industries, then he does not have to prove that he could not use the property for the application of 98-FZ and Government Decree No. 439 to him. In applying the benefits listed there, he can only be denied due to dishonest behavior (for example, he continued to work despite the ban). Of course, the fact of dishonesty must be proven.

5. Another important clarification is about the procedure for reducing the amount of rent:

The rent should be calculated in a reduced amount also from the moment the high alert mode is introduced in the constituent entity of the Russian Federation. Neither the date of signing the agreement, nor the date of entry into force of the court decision (if the tenant sought the reduction in court) are important.

It is not entirely clear whether it is possible to change the beginning of the application of the reduced rent directly in the text of the agreement. Unlike paragraph 3, this paragraph does not state that the position of the tenant cannot be worsened by agreement of the parties.

If no rent reduction agreement has been reached, the tenant may:

• force the landlord to reduce the rent in court;
• not file a claim on his own, pay what he sees fit, and then object to a claim for debt collection, indicating that the landlord unreasonably evaded rent reduction.

In these cases, the court will determine how much the rent should be reduced based on "the amount by which the rent would normally be reduced in the circumstances."

6. All of the above fully applies to the lease of a part of an immovable thing, for example, if you rented not a whole room in a shopping center, but several square meters for a vending machine tomato.

7. According to Government Decree No. 424, from April 6, 2020 until January 1, 2021, penalties for late payment of utilities in residential buildings (including multi-apartment buildings) are not charged. At the same time, the Supreme Court of the Russian Federation explains that:

• penalties have not been accrued since April 6 everywhere - regardless of when a high alert mode was introduced in a particular subject of the Russian Federation;
• penalties are not accrued to either apartment owners or management companies.

Bankruptcy (for companies subject to moratorium)

8. Procedural issue: if you have already notified the debtor of your intention to bankrupt, but did not have time to file an application before the moratorium, then after the moratorium ends, you need to send a new notification.

9. "Moratorium" companies can be bankrupted in the order of bankruptcy of the liquidated debtor.

10. During the period of the moratorium, neither penalties nor interest are charged on the debtor under Art. 395 of the Civil Code of the Russian Federation.

11. Banks are not entitled to write off money from accounts & nbsp; moratorium debtors under executive documents.

Criminal law

12. Punishment for fakes under 207.1 and 207.2 of the Criminal Code of the Russian Federation is possible only for those who deliberately disseminated them, that is, they knew that the information was false.

You can punish for a repost if the same condition is met - the reposter understood that he was spreading a fake.

13. What is the "public" distribution of a fake - the court will decide in a particular case.

In general, public can be considered:

• messages in social networks, instant messengers, by e-mail, speaking at meetings and hanging a poster on your own balcony, etc.
• not only messages addressed to an unlimited circle of people, but also addressed to a specific group (a current example is a parent chat in WhatsApp).

14. For liability under 236 of the Criminal Code (for violation of sanitary and epidemiological rules), it is necessary that a mass disease of people or at least the threat of a mass disease occur.

Mass is an evaluation category. In this case, not only the number of cases, but also the severity of their condition can be taken into account.

Responsibility for the "threat of mass disease" comes only in the case when the outbreak did not happen only due to the timely intervention of doctors, emergency services, etc.

15. The difference between 236 of the Criminal Code and 6.3 of the Code of Administrative Offenses is in the severity of the consequences. If, due to a violation of the sanitary and epidemiological rules, one or more people fell ill (that is, there was no mass character or threat of mass character), this is an administrative offense, not a crime.

16. Criminal proceedings may be conducted via videoconferencing.

17. Seizures of property in criminal cases are classified as “urgent”, meaning that they can be dealt with now that the courts are in fact closed.

18. The same urgent ones include  questions about parole, release due to illness of the convict, etc.

19. Suspects of minor crimes should now be placed in a pre-trial detention center as rarely as possible.

Administrative offenses

20. An administrative investigation under the “coronavirus” articles 6.3 and 20.6.1 of the Code of Administrative Offenses can be carried out, but this is not necessary.

21. If your driver's license expired after 02/01/2020, then you can still drive - you are not violating anything. 

Author

Daria Vladimirovna Tretyakova

Head of representative office in Moscow