How to calculate interest payments. What is the maximum interest rate on a loan that can be set by a credit institution? Calculation of taxes and interest

How to correctly specify in an employment contract the amount of the percentage bonus (for example, 10%) for work in areas equivalent to the districts of Kr. North.

Answer

The employment contract can indicate: “A percentage increase in wages for length of service in the Far North is paid in accordance with the law.” This is explained by the fact that the amount of the bonus is regulated by law and cannot be changed by an employment contract.

You can also indicate: “For work experience in the Far North, a percentage increase in wages of 10% is paid.” At the same time, the amount of the percentage premium must correspond to the amount established by law. Also, when the size of the percentage increase changes, it will be necessary to conclude an additional agreement to the employment contract (see).

For more details on this, see the materials in the justification.

The rationale for this position is given below in the materials of the “Lawyer System” .

« How to determine the size of the percentage bonus for work in the Far North

The amount of the percentage bonus for work in the Far North depends on:

• from the area in which the employee works;
• on the employee’s age;

• on the duration of his work (residence) in a given region.

This follows from the provisions of Article 317 of the Labor Code of the Russian Federation, paragraph 16 of the Instruction approved by order of the Ministry of Labor of the RSFSR dated November 22, 1990 No. 2, paragraph 6 of the Instruction approved by order of the Ministry of Labor of the RSFSR dated November 22, 1990 No. 3, order of the Government of the RSFSR dated December 26 1991 No. 199-r.

For example, in the Far North regions no bonus is paid during the first six months of work. In areas equated to the regions of the Far North, salary bonuses begin to be paid after a year of work (clause 16 of the Instruction, approved by order of the Ministry of Labor of the RSFSR dated November 22, 1990 No. 2). For more information about the amounts of percentage allowances, see the table.

Employees under 30 years of age are entitled to an increased bonus. However, in order to take advantage of the increased percentage increase, they need to live in the corresponding region for at least one year (clause 16 of the Instruction, approved by order of the Ministry of Labor of the RSFSR dated November 22, 1990 No. 2).

Special rules for calculating interest allowances may be established in industry agreements. However, such agreements are binding for commercial organizations only if they join them (Article 48 of the Labor Code of the Russian Federation). For example, employees in the coal industry under 30 years of age are entitled to a preferential procedure for calculating bonuses. Unlike the general procedure, they have the right to a bonus from the first day of work. However, to do this, such employees must have lived in the Far North (equivalent areas) for at least five years. This is stated in paragraph 3.2.9 of the Federal Industry Agreement on the Coal Industry for 2010-2012.

When calculating a higher interest surcharge, please comply with the general maximum limit in that region. That is, in the regions of the Far North, a bonus of more than 100 or 80 percent of earnings cannot be charged. And in areas equated to the regions of the Far North - more than 50 percent (for more details, see the table).

Such rules are provided for in paragraph 16 of the Instruction, approved by order of the Ministry of Labor of the RSFSR dated November 22, 1990 No. 2, and paragraph 6 of the Instruction approved by order of the Ministry of Labor of the RSFSR dated November 22, 1990 No. 3.

Experience for bonus

Does the bonus for working in the Far North depend on the employee’s length of service in this region?

Percentage increases depend not only on the region and age of the employee, but also on his work experience in a given region (Article 317 of the Labor Code of the Russian Federation). The length of service giving the right to receive bonuses is determined in calendar days of work in the relevant region on an accrual basis. Breaks in work and their duration, as well as the reasons for termination of the employment relationship do not affect the procedure for calculating length of service. This follows from the provisions of paragraph 1 of the Decree of the Government of the Russian Federation of October 7, 1993 No. 1012 and the established judicial practice, the general approach of which is set out in the review of the Supreme Court of the Russian Federation of February 26, 2014.

The length of work experience to receive a percentage increase is determined by the work book or by certificates issued by organizations* (clause 33 of the Instructions approved by order of the Ministry of Labor of the RSFSR dated November 22, 1990 No. 2, clause 28 of the Instructions approved by order of the Ministry of Labor of the RSFSR dated November 22, 1990 . No. 3).

For shift workers working in the Far North and equivalent areas, the length of service includes:

• actual time (calendar days) of the shift in the regions of the Far North and areas equivalent to them;
• actual days of travel (provided for by the shift work schedule) from the gathering place (location of the organization organizing the work) to the place of work and back.

Such rules are established in Article 302 of the Labor Code of the Russian Federation.

How to calculate a bonus for work in the Far North

The bonus is accrued from the date the employee becomes entitled to it. For part-time employees working in the organization, accrue percentage bonuses for length of service in the Far North regions in the same way as other employees (Part 3 of Article 285 of the Labor Code of the Russian Federation).

Apply the bonus to the employee’s actual earnings, including remunerations for length of service and based on the results of work for the year, provided for by the remuneration system. Do not apply a surcharge*:

• to the regional coefficient;
• for payments based on average earnings, for example, vacation pay, payment for business trips, etc.;
• for financial assistance;
• for payments that are of a one-time incentive nature and not determined by the remuneration system (bonuses for anniversaries, holidays, etc.).

This approach is confirmed by paragraph 19 of the Instruction, approved by order of the Ministry of Labor of the RSFSR dated November 22, 1990 No. 2, paragraph 7 of the Instruction approved by order of the Ministry of Labor of the RSFSR dated November 22, 1990 No. 3, paragraph 1 of the clarification approved by the resolution of the Ministry of Labor of Russia dated September 11, 1995 No. 49, and decisions of the Supreme Court of December 1, 2015 No. AKPI15-1253 and of July 17, 2000 No. GKPI00-315.

If bonuses are paid based on the results of work for any period, the amount of this bonus for calculating allowances is distributed among the months of the reporting period in proportion to the time worked. This distribution is necessary for the correct calculation of the northern bonus on the premium amount. When calculating a bonus on the bonus amount for a quarter, half a year, etc., be guided by the following. Apply the amount of the premium that is established for the month of the reporting period to which the premium amount relates.

This procedure for calculating the bonus is established by paragraph 19 of the Instruction, approved by order of the Ministry of Labor of the RSFSR dated November 22, 1990 No. 2, and paragraph 7 of the Instruction approved by order of the Ministry of Labor of the RSFSR dated November 22, 1990 No. 3.”

The essential terms of the loan agreement include, in particular, the interest rate on the loan. Its size and procedure for determining it, including depending on changes in the conditions provided for in the loan agreement, are usually established by the creditor bank by agreement with the borrower (clause 1 of article 819 of the Civil Code of the Russian Federation; part 1 of article 29, part 2 Article 30 of the Law of December 2, 1990 N 395-1; clause 4 of Part 9 of Article 5 of the Law of December 21, 2013 N 353-FZ).

In this material we will look at the interest rate limitation under a consumer loan agreement. Please note that the above applies equally to interest on consumer loan agreements, except for the provisions that are specifically stated in the material.

Interest rate on consumer loan

The interest rate under a consumer loan agreement is determined using one of the rates (Part 1, Article 9 of Law No. 353-FZ):

• fixed rate;
• a variable rate, the value of which changes depending on the change in the variable amount provided for in the contract.

Under a loan agreement concluded with a citizen borrower, the lender, as a rule, cannot unilaterally shorten the term of this agreement, increase the amount of interest or change the procedure for determining it. In terms of consumer loans, the bank has the right only to unilaterally reduce the constant interest rate (Part 4, Article 29 of Law No. 395-1; Part 16, Article 5 of Law No. 353-FZ).

A consumer loan agreement, which provides for the obligatory conclusion by the borrower of an insurance agreement, may contain a condition on the right of the lender, in the event of the borrower’s failure to fulfill this obligation for more than 30 calendar days, to decide to increase the interest rate on the loan issued. In such circumstances, the increase in the rate is limited to the level of the rate at the time of concluding an agreement on similar loan agreements, but without the mandatory conclusion of an insurance contract, as well as the rate at the time the creditor makes a decision to increase its size (Part 11, Article 7 of Law No. 353-FZ).

Limitation on the interest rate on a consumer loan

The legislation establishes a limit on the total cost of a consumer loan (hereinafter referred to as the CLC), which affects the interest rate on it. Thus, at the time of conclusion of the agreement, the PSC cannot exceed by more than 1/3 its average market value calculated by the Bank of Russia for the corresponding calendar quarter. In the event of a significant change in market conditions, the Bank of Russia may establish a period during which this restriction is not applicable (Part 11, Article 6 of Law No. 353-FZ).

Note. The Bank of Russia quarterly calculates the average market value of the PSC as a weighted average of at least one hundred largest lenders for a certain loan category or for at least 1/3 of the total number of lenders providing a certain loan category ( Part 10 Art. 6 of Law No. 353-FZ).

The average market value of the PSC is published by the Bank of Russia quarterly. Thus, under consumer loan agreements concluded in the second quarter of 2017 by credit institutions for the purchase of cars with mileage from 0 to 1,000 km (with the car as collateral), this value is 15.768%, and the maximum value of the PSK is 21.024% (Part 8 Article 6 of Law No. 353-FZ; Information from the Bank of Russia “On the average market values ​​of the total cost of a consumer loan (loan)”).

Interest rate on a microloan agreement concluded with a microfinance organization

Let us note a feature regarding interest on microloans provided not by a bank, but by a microfinance organization (hereinafter referred to as the MFO).

If a short-term (up to a year) consumer microloan agreement has been concluded with a microfinance organization since 01/01/2017, the amount of interest on it is limited to three times the loan amount. For agreements concluded between 03/29/2016 and 12/31/2016, such a prohibition applies if the amount of accrued interest and other payments under the agreement (except for penalties and fees for additional services) is four times the loan amount (clause 9, part 1 Article 12 of the Law of July 2, 2010 N 151-FZ; Part 7 of Article 22 of the Law of July 3, 2016 N 230-FZ;

DOI: https://doi.org/10.15688/lc.jvolsu.2017.3.15

UDC 34.466.3 LBC 67.304.1

THE INTEREST RATE UNDER THE CREDIT AGREEMENT IN THE LIGHT OF JUDICIAL PRACTICE

Irina E. Mikheeva

O.E. Kutafin Moscow State Law University (MSLA), Moscow, Russian Federation

Igor A. Ostapenko

Volgograd State University, Volgograd, Russian Federation

Introduction: the condition of the interest rate on the credit is material to the credit agreement. The civil legislation does not stipulate the requirements to the maximum interest rate under the credit agreement, which leads to the disputes in practice. The aim of the study is the legal precedents of applying the Russian legislation on interest under the credit agreement and changing the interest rate both by agreement of the Parties and unilaterally. Methods: the methodological framework for this study is a set of scientific methods, among which the main place is occupied by the method of analysis and the comparative law method. Results: grounded in the work the author's point of view is based on the legislation and judicial practice. The author concludes that the condition on the interest rate may be invalidated by the court if the interest rate is significantly different from the market conditions because of the disadvantageousness of such a condition.

The legal nature of the raised interest depends on what ground the interest rate was raised, which can serve as a liability or a new fee for the credit under certain conditions.

Conclusions: the law provides for the right of a credit institution to unilaterally raise the interest rate in cases stipulated in the contract, however, the newly established interest rate should be consistent with the principles of good faith and reasonableness; in addition, the bank has to prove the grounds for which it considers the possibility of the unilateral change of the interest rate.

Key words: interest rate, change of interest rate, credit institutions, borrowers, disadvantageousness, market conditions.

UDC 34.466.3 BBK 67.304.1

SIZE OF INTEREST RATE UNDER THE LOAN AGREEMENT IN THE LIGHT OF COURT PRACTICE

Irina Evgenievna Mikheeva

Moscow State Law University named after. O.E. Kutafina (MSAL),

^ Moscow, Russian Federation

Igor Anatolievich Ostapenko

C Volgograd State University, Volgograd, Russian Federation

n Introduction: the condition on the amount of interest for using the loan is essential for the loan agreement. Civil legislation does not establish requirements for the maximum interest rate under a loan agreement, which leads to controversial situations in practice. ® The purpose of the study is the judicial practice of applying the provisions of the current Russian legislation on interest under a loan agreement, changing the interest rate both by agreement of the parties and unilaterally. Methods: the methodological basis of this study 2 is a set of methods of scientific knowledge, among which the main place is occupied by methods of ® analysis and comparative legal. Results: the author’s position substantiated in the work is based on

legislation and judicial practice. The author concludes that the condition on the interest rate may be invalidated by the court if the interest rate differs significantly from market conditions, due to the enslavement of such a condition.

The legal nature of increased interest depends on the basis on which the increase in the interest rate was made, which can act as a measure of responsibility or a new fee for using a loan under certain conditions.

Conclusions: the law provides for the right of a credit institution to unilaterally increase the interest rate in cases provided for in the agreement, however, the newly established interest rate must comply with the principles of good faith and reasonableness, in addition, the bank must prove the grounds with which it associates the possibility of unilaterally changing the interest rate.

Key words: interest rate, interest rate change, credit organizations, borrowers, bondage, market conditions.

Introduction

The amount of interest for using a loan in accordance with Art. 809, 819 of the Civil Code of the Russian Federation is determined by agreement of the parties to the loan agreement.

At the same time, as A.E. noted at the beginning of the last century. Worms, “the amount of contractual interest is not limited by law” (quoted from:). Until now, “modern Russian civil legislation does not provide for any restrictions on the maximum amount of interest and, accordingly, the consequences of establishing a high interest rate.”

Accordingly, the parties to the loan agreement can agree on any maximum interest rate for using the loan. At the same time, given that credit institutions are professional participants in these legal relations, in practice abuses on their part are possible.

Despite the absence of direct restrictions on the amount of interest in the legislation, in recent years the position has been developed in judicial practice that the amount of the interest rate under a loan agreement must be agreed upon taking into account the market value of the interest rate.

Requirements for the market interest rate

The interest rate should be set taking into account market conditions, as indicated by the Plenum of the Supreme Court of the Russian Federation in paragraph. 2 clause 14 of the Decree of November 22, 2016 N° 54 “On some issues of

changes to the general provisions of the Civil Code of the Russian Federation on obligations and their fulfillment” (hereinafter referred to as Resolution of the Supreme Court of the Russian Federation No. 54). If credit institutions fail to comply with this requirement, there is a risk that they will be refused to collect the excess portion of the interest in court.

An interest rate, the size of which differs significantly from the market rate, may indicate the establishment of extremely unfavorable terms of this agreement for the plaintiff (borrower) and the enslavement of the loan agreement. A enslaving transaction may be declared invalid.

In the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 10, 2013 No. 162 “Review of the practice of application by arbitration courts of Articles 178 and 179 of the Civil Code of the Russian Federation”, it was concluded that the provisions on enslavement of a transaction are applied to citizens engaged in business activities without forming a legal entity, despite the fact that the nature of their activities, like those of commercial organizations, is associated with entrepreneurial risk. As the court pointed out, “in accordance with Article 179 of the Civil Code of the Russian Federation, the elements established for declaring a transaction invalid as enslaving include concluding a transaction on extremely unfavorable conditions, which may be evidenced, in particular, by an excessive excess of the contract price relative to other contracts of this type. However, the presence of this circumstance is not necessary to invalidate a transaction made under the influence of deception, violence, threat or malicious agreement between a representative of one party and the other party.

In satisfying the claim, the court proceeded from the fact that the evidence presented by the plaintiff confirmed the fact of a confluence of difficult circumstances on the plaintiff’s side. At the same time, the court noted that, taken together, the amount of interest under the disputed loan agreement, which differs excessively from the interest rates under concluded agreements of the same type, and its term indicate that the conditions of this agreement have been established to be extremely unfavorable for the plaintiff (borrower). Moreover, the interest rate under the disputed agreement was so much higher than the average interest rate prevailing in the lending market for loan agreements with similar conditions (no more than 30-40 percent per annum), that the totality of the above circumstances sufficiently indicates the enslavement of the said agreement.<...>. The court emphasized that the plaintiff’s status as an individual entrepreneur does not mean that he is not subject to the statutory guarantees for the protection of the property interests of participants in civil transactions, including when making transactions on extremely unfavorable conditions.<...>».

The controversial loan agreement was declared invalid by the court on the basis of Art. 179 of the Civil Code of the Russian Federation.

The procedure for changing the interest rate

Changing the interest rate under a loan agreement is carried out according to the general rules established by the Civil Code of the Russian Federation on changing the agreement, taking into account the special provisions provided for by law for the loan agreement.

According to paragraph 1 of Art. 450 of the Civil Code of the Russian Federation, amendment of the contract is possible by agreement of the parties, unless otherwise provided by the Civil Code of the Russian Federation, other laws or the contract.

Changing the interest rate by agreement of the parties, as a rule, does not give rise to controversial situations in practice.

Changing the interest rate unilaterally

General requirements for the procedure for unilateral changes in obligations established

we clause 2 art. 310 of the Civil Code of the Russian Federation, which provides the grounds for such a change, depending on the nature of the activities of the parties to the agreement (entrepreneurial, personal).

Since changing the interest rate unilaterally is a unilateral change in the obligation, the rules of clause 2 of Art. 450.1 of the Civil Code of the Russian Federation, providing that in the event of a unilateral refusal of the contract (execution of the contract) in whole or in part, if such a refusal is allowed, the contract is considered terminated or amended.

As explained by the RF Supreme Court, in paragraph 13 of the RF Supreme Court Resolution No. 54, by virtue of paragraph 1 of Art. 450.1 of the Civil Code of the Russian Federation, the right to unilaterally change the terms of a contractual obligation or to unilaterally refuse to fulfill it can be exercised by the authorized party by appropriate notification to the other party. The contract is amended or terminated from the moment when this notice is delivered or is considered delivered according to the rules of Art. 165.1 of the Civil Code of the Russian Federation, unless otherwise provided by the Civil Code of the Russian Federation, other laws, other legal acts or terms of the transaction, or does not follow from custom or from practice established in the relationship of the parties.”

The most controversial situations in law enforcement are situations related to an increase in the interest rate, which will be discussed in more detail.

As already noted, an increase in the interest rate under a loan agreement is possible only with borrowers who are business entities, and is impossible with consumer citizens.

The solution to the question of the relationship between interest on a monetary obligation and interest as a measure of liability for failure to fulfill a monetary obligation is determined by the difference in the legal essence of both interest.

The legal nature of the increased interest rate under a loan agreement in the event of a borrower’s failure to fulfill an obligation is determined taking into account the nature of the violation committed by the borrower, which can be divided into two grounds: for

reduction of overdue debt on the loan (principal debt); for all other violations for which the loan agreement provides for an increase in the interest rate.

Let us analyze in more detail the specified reasons for increasing the interest rate under the loan agreement.

According to Art. 811 of the Civil Code of the Russian Federation, unless otherwise provided by law or the loan agreement, in cases where the borrower does not repay the loan amount on time, interest is payable on this amount in the amount provided for in paragraph 1 of Art. 395 of the Civil Code of the Russian Federation, from the day when it should have been returned until the day it is returned to the lender, regardless of the payment of interest provided for in paragraph 1 of Art. 809 of the Civil Code of the Russian Federation.

The issue of the legal nature of interest increased in connection with the occurrence of overdue debt on a loan has remained controversial in banking practice for a long time.

However, the courts have repeatedly noted that increasing the interest rate in the event of overdue debt is a type of civil liability for violation of obligations. Thus, in paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 13, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 of October 8, 1998 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people’s funds”, it is explained that “in those cases “When the loan agreement or credit agreement establishes an increase in the amount of interest due to late payment of the debt, the amount of the rate by which the fee for using the loan is increased should be considered a different amount of interest established by the agreement in accordance with paragraph 1 of Article 395 of the Code.”

Interest rate for illegal use of funds in accordance with Art. 395 of the Civil Code of the Russian Federation can be calculated based on the key rate of the Bank of Russia, which was in effect during the relevant periods in the absence of another agreement of the parties, or in the amount of the rate by which the interest rate is increased, provided for by agreement of the parties.

At the same time, the position has also been expressed in the literature that interest accrued upon the occurrence of overdue

debt on the principal debt, in the light of judicial clarifications, can be both a measure of liability (Article 395 of the Civil Code of the Russian Federation) and ordinary interest for the use of borrowed funds, only changed under the condition of non-repayment of the loan within the prescribed period. An increase in interest should be considered as a change in the interest rate for using the loan amount upon the occurrence of a certain condition - delay in repayment of the loan amount. In this regard, increased interest must be included in the principal amount of the debt.

However, this position seems unconvincing, since Art. 811 of the Civil Code of the Russian Federation provides for the accrual of interest in the event of overdue debt under Art. 395 of the Civil Code of the Russian Federation.

In cases where an increase in the interest rate in the loan agreement is provided for failure to fulfill obligations on the part of the borrower (except for the occurrence of overdue debt on the loan), the unilaterally changed interest rate is a fee for using the loan, unless otherwise provided by the loan agreement.

This position has been repeatedly expressed by the judiciary.

The Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 13 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 No. 147 “Review of judicial practice in resolving disputes related to the application of the provisions of the Civil Code of the Russian Federation on a loan agreement” established that “the court collected the debt under the loan agreement, containing a condition on increasing the amount of interest in the event of a deterioration in the loan security, as well as a decrease in the indicators of the financial and economic activity of the borrower specified in the agreement, increased interest in full, establishing that the security for the fulfillment of obligations under the agreement has been lost, and new security has not been provided.<...>the condition of increasing interest in this case cannot be considered as a condition of liability for violation of the obligation to repay the loan...”

Thus, the increased interest rate for violations other than those arising

the increase in overdue debt on the principal debt (loan), unless otherwise provided by agreement of the parties, will be the new amount of interest for using the loan.

When increasing the interest rate on loan agreements, the requirements of Art. 10 of the Civil Code of the Russian Federation, that is, the creditor must not violate the reasonable balance of the rights and obligations of the parties or otherwise violate the fundamental private law principles of reasonableness and good faith, which has been repeatedly noted in court decisions.

Let us illustrate this conclusion with a specific court case.

The Presidium of the Supreme Arbitration Court of the Russian Federation, considering case No. A71-10080/2010-G33, in Resolution No. 13567/11 of March 6, 2012, indicated the following: “<...>When exercising the right provided for in a loan agreement to unilaterally change the terms of lending, the bank must act within the permissible limits of exercising civil rights and prove the existence of grounds with which, under the terms of the agreement, the possibility of a unilateral change by the bank in the amount of payment (interest) for the loan is associated.

The bank’s right to unilaterally change the interest rate on a loan, enshrined in the agreement, does not mean that the borrower who does not agree with such changes cannot prove that a unilateral change in contractual terms violates the reasonable balance of rights and obligations of the parties, contradicts established business practices, or otherwise violates fundamental private law principles of reasonableness and good faith.”

A similar position was expressed by the Supreme Court of the Russian Federation, which in paragraph 14 of Resolution No. 54 of the Supreme Court of the Russian Federation indicated that “when a party exercises the right to unilaterally change the terms of an obligation or unilaterally refuse to fulfill it, it must act reasonably and in good faith, taking into account the rights and legitimate interests of the other party (clause 3 of article 307, clause 4 of article 450.1 of the Civil Code of the Russian Federation).

For example, on this basis, the court refuses to collect part of the interest on a loan agreement in the event of a unilateral

th, unconditional disproportionate increase in the bank’s interest rate.”

It should also be taken into account that the bank must prove the grounds on which the possibility of unilaterally changing the interest rate is associated.

The amount of interest under a loan agreement should not differ excessively from the interest rates under concluded agreements, that is, it must correspond to market conditions.

A condition on the interest rate that differs significantly from the market rate may indicate the enslavement of the loan agreement.

When increasing the interest rate under a loan agreement, the requirements of Art. 10 of the Civil Code of the Russian Federation, that is, the creditor must not violate the reasonable balance of the rights and obligations of the parties or otherwise violate the fundamental private law principles of reasonableness and good faith.

A bank's unilateral change of the interest rate under a loan agreement may be declared invalid by the court if it is proven that the bank's actions violate the general balance of interests of the parties and contradict the principles of reasonableness and good faith (Articles 1, 10 of the Civil Code of the Russian Federation), including about market interest rate conditions, or the borrower was placed in conditions that did not allow him to fulfill the obligation properly.

The consequences of an unreasonable unilateral increase in the interest rate in violation of the principles of good faith and reasonableness are refusal to collect part of the interest under the loan agreement; invalidation of controversial contractual terms, including according to the rules of Art. 428 Civil Code of the Russian Federation.

BIBLIOGRAPHY

1. Dubrovskaya, I. Legal nature of increased interest / I. Dubrovskaya // EZh-Lawyer. -2013. - No. 38. - P. 1.

2. Egorova, M. A. Interest on a monetary obligation: a brief commentary on Article 317.1

Civil Code of the Russian Federation / M. A. Egorova, K. M. Arslanov // Bulletin of Arbitration Practice. - 2017. - No. 1. - P. 15-21.

3. Essays on credit law / ed. A.E. Vor-msa. - M.: Financial publishing house of the NKF USSR, 1926. - 167 p.

4. Chkhutiashvili, L. V. Current issues of regulation of a loan agreement under Russian law / L. V. Chkhutiashvili // Banking Law. - 2012. - No. 1. - P. 65-68.

1. Dubrovskaya I. Pravovaya priroda povyshennykh protsentov. EZh-Yurist, 2013, no. 38, p. 1.

2. Egorova M.A., Arslanov K.M. Protsenty po denezhnomu obyazatelstvu: kratkiy kommentariy statyi 317.1 GK RF. Vestnik arbitrazhnoy praktiki, 2017, no. 1, pp. 15-21.

3. Vorms A.E., ed. Ocherki kreditnogo prava. Moscow, Finansovoe izd-vo NKF SSSR, 1926. 167 p.

4. Chkhutiashvili L.V. Aktualnye voprosy regulirovaniya kreditnogo dogovora po rossiyskomu pravu. Bankovskoe pravo, 2012, no. 1, pp. 65-68.

Information about the Authors

Irina E. Mikheeva, Candidate of Juridical Sciences, Associate Professor, Deputy Head of the Department of Banking Law, O.E. Kutafin Moscow State Law University (MSLA), Sadovaya-Kudrinskaya St., 9, 125993 Moscow, Russian Federation, [email protected].

Igor A. Ostapenko, Postgraduate Student, Department of Civil and International Private Law, Volgograd State University, the Base Department of the Southern Scientific Center of the Russian Academy of Sciences, Prosp. Universitetsky, 100, 400062 Volgograd, Russian Federation, [email protected].

Irina Evgenievna Mikheeva, Candidate of Legal Sciences, Associate Professor, Deputy Head of the Department of Banking Law, Moscow State Law University. O.E. Kutafina (MGYuA), st. Sadovaya-Kudrinskaya, 9, 125993 Moscow, Russian Federation, [email protected].

Igor Anatolievich Ostapenko, postgraduate student of the Department of Civil and International Private Law, Volgograd State University, base department of the Southern Scientific Center of the Russian Academy of Sciences, prosp. Universitetsky, 100, 400062 Volgograd, Russian Federation, [email protected].

The interest rate specified in the loan agreement is its essential condition. In most cases, the credit institution, after agreement with the borrower, establishes the procedure for determining the loan rate and its size, including depending on the changing conditions provided for in the agreement between the parties to the transaction. This point is stated in clause 1 of Article 819 of the Civil Code of the Russian Federation; Part 1 Art. 29, part 2 art. 30 of the Law of December 2, 1990 No. 395-1; clause 4, part 9, art. 5 of the Law of December 21, 2013 No. 353-FZ.

In this article we will understand what is the maximum amount of interest on a loan that a bank has the right to set? and microfinance organizations. We would like to draw your attention to the fact that our material examines the issues of the maximum interest rate specifically for consumer lending (targeted and non-targeted loans to individuals).

How is the interest rate on consumer loans regulated?

If we refer to Part 1 of Art. 9 of Law No. 353-FZ, then we learn that the interest rate under a consumer credit agreement can be either fixed or variable. Different types of interest rates on loans are selected depending on the loan products and lending conditions in certain banks.

A credit institution, in most cases, under a loan agreement concluded with a borrower who is an individual, does not have the right to independently change the amount of interest on the loan or reduce the term of the agreement.

If we talk about a consumer loan, then the bank unilaterally only has the right to reduce the interest rate on a consumer loan on the basis of Part 4 of Article 29 of Law No. 395-1 and Part 16 of Article 5 of Law No. 353-FZ.

A consumer loan agreement, which stipulates the mandatory conclusion of an insurance agreement, may contain a condition that the lender has the right to decide to increase the interest rate on the loan provided.

This can happen if the consumer does not fulfill his life insurance obligations (health, job loss, ...) for more than 30 calendar days.

Thus, if, when receiving a loan for several years, the client insured his life only for the first year, and then did not insure himself, then after a year the bank can raise the interest rate on the already issued consumer loan.

Please note that if the borrower refused insurance and the bank increased the interest rate on an existing loan, this rate can only be increased by the level that was fixed at the time of signing the loan agreement in accordance with Part 11 of Article 7 Law No. 353-FZ.

At the legislative level in Russia, a limitation on the total cost of credit (FLC) has been fixed, which has a direct impact on the interest rate in Russian banks.

By law, in a loan agreement, a bank cannot establish interest rates on a consumer loan that exceed the average market interest rates by more than one third. The calculation of the average market interest rates is carried out by the Central Bank of Russia quarterly.

The Central Bank has the right to lift the limitation on interest rates on loans to banks only if there is a fundamental change in market conditions in the country (according to Part 11 of Article 6 of Law No. 353-FZ).

On a note! Once a quarter, the Bank of Russia calculates the average market value of the PSC as a weighted average value for at least 100 leading banks in the country, both for certain types of credit products, or for no less than for credit products of one third of the total number of credit institutions of the Russian Federation (according to Part 10 of Art. 6 of Law No. 353-FZ).

The Bank of Russia publishes the average market value of the PSC once a quarter in the form of information and analytical materials on the official website of the Central Bank of the Russian Federation - “Information on the average market value of the full cost of a consumer loan (loan).”

What is the maximum interest rate on a microloan that an MFO can set?

Let's look at the features of interest rate restrictions on microloans issued not by a bank, but by a microfinance organization (MFO).

If a consumer loan agreement was concluded with a microfinance organization for a short period (up to 12 months) starting from 01/01/2017, then the interest rate on it is limited to three times the loan amount.

The exception is payments to microfinance organizations for additional services, as well as fines and penalties in case of delays (see Part 9, Part 1, Article 12 of Law No. 151-FZ dated July 2, 2010, and Part 7, Article 22 of Law No. 3, 2016). 230-FZ).

If we talk about consumer loan agreements that MFOs entered into in the second quarter of 2017, the average market value of the PSC for a consumer microloan without collateral (with the exception of POS microloans), in the amount of up to 30,000 rubles and for a period of 30 days inclusive, amounted to 599.367%. Thus, the maximum PSC was 799.156%.

Please note that if you took out a microloan from a microfinance organization under a short-term agreement after 01/01/2017, then in case of delay in repaying the microloan amount or paying interest on this loan, the microfinance organization has the right to charge you a penalty (fines, penalties), or other measures of liability for the outstanding portion of the principal debt under the loan agreement. In addition, the MFO may continue to accrue interest on the outstanding portion of the principal amount until the total interest amount reaches twice the amount of the outstanding portion of the loan in accordance with Art. 12.1 of Law No. 151-FZ.

Bank interest is nothing more than a fee for using borrowed funds. In civil circulation, the most famous cases of using interest are fees and deposit fees. In both cases, there are two entities in the relationship, one of which is always a banking institution, which, based on certain economic calculation methods, determines the amount of bank interest for a specific type of transaction.

Types of bank interest

In banking practice, there are several types of interest:

• loan (credit),
• deposit,
• discount,
• accounting

Loan interest is the amount that is charged to the borrower for using loan funds. Deposit interest is essentially the same as loan interest, but the borrower in this case is a banking institution that pays you a fee in the form of this same deposit interest for the use of your money.

The discount percentage assumes the amount of discount from any amount in a monetary transaction. The discount rate is the rate determined by the Central Bank at which this institution issues borrowed funds to other banks.

Calculation of bank interest

In financial practice, it is customary to calculate bank interest in annual terms. This means that if the bank indicates that the rate of funds accepted for deposit is, for example, 10% per annum, you receive an amount greater than this 10%, accrued during the year. If you need to calculate how much it will cost per month or per day, simply divide the interest rate by the time period you need. To find out how much you will receive per month, you need to divide 10% by 12 (the number of months in a year). And to calculate the interest per day, you will need to divide the interest rate by 365 (the number of days in a year).

Simple and complex bank interest

Bank interest can be calculated in two ways, called simple and compound interest. In the first case, it is understood that the loan (deposit) amount is always taken as the basis for calculations during the term of the agreement. Compound interest takes into account that in each subsequent period the amount on which interest is calculated increases by the amount of interest received in the previous period.

Traditionally, deposits on which the bank charges compound interest are considered more profitable. The situation with loans is the opposite. Interest is considered beneficial if it is calculated not on the entire loan amount, but on the balance of funds not returned to the bank.

Bank interest rate calculation

Before signing a loan agreement, it is advisable to understand what amounts you will have to pay, so the correct calculation of the bank interest rate is important. Many online banks offer the borrower a calculator for these calculations on their websites, but in reality it is not so easy to use, but it is possible to make an approximate calculation.

Many methods for calculating bank interest rates are complex and require mathematical knowledge. Therefore, we will focus on simpler methods. If you add up all the payments proposed in the list, you can calculate the approximate percentage that will have to be paid for borrowed funds:

1. loan interest;
2. all bank fees (for processing an application, opening, servicing an account, etc.);
3. all life insurance and other services;

To make the correct calculation, you should take into account various circumstances that may arise when using borrowed money, for example, early repayment, penalties, fines and much more.

Some bank clients, on the contrary, entrust their finances to a credit institution for safekeeping. The bank pays interest for this, its size depends on many factors.

Interest rate in brokerage companies

A brokerage company is an intermediary between the seller and the buyer. If previously only banks were engaged in savings operations, now similar services in other institutions are becoming increasingly popular. The client's assets in the brokerage office may also be of a savings nature. The broker can use the free funds on the client’s deposit for his own purposes and pay the client for it.

Interest rates at brokerage companies change frequently, so they are calculated daily and deposited at the end of the month. Brokers offer different interest rates. If the client enters into many transactions, then the option with a reduced interest rate will be convenient for him (Commission - 0.015%, SWAP - 1 pip, Interest rate - 3%). A high percentage is important for strategic investors, since deals are rarely concluded (Commission - 0.03%, SWAP - 0 pip, Interest rate - 6%.). The client is required to make at least one transaction in order for the interest rate in brokerage companies to begin to be credited to the deposit.

When lending, there are several features of bank interest

The borrower pays an interest rate to the credit institution; today, when lending, there are several features of bank interest:

1. loan (receipt of profit by the bank from the client for the use of money);
2. deposit (paid by the bank to the client for the opportunity to use his money);
3. discount rate (the Central Bank rate at which loans are issued to other banks);
4. discount (% for risks associated with issuing a loan).

Each of them is intended for specific functions: savings, regulatory and redistribution. The calculation of a bank's interest rate is influenced by many different factors.

What determines the amount of bank interest?

Currently, there is a single formula for calculating the interest rate on a deposit account. It is necessary to understand what the size of the bank interest depends on and take into account that various factors can adjust it:

M = D * (1 + r/100* t/360).

M - the amount received by the client at the end of the investment period;

D - deposit amount;

r - bank interest rate;

t is the number of days for which the client entrusts his finances to the bank.

In the financial world, it is believed that each month has 30 days.

Example: deposit 100,000 rubles in the bank at 3% per annum for a period of 6 months.

100000 * (1 + 3%/100 * 180/360) = 100000 * (1+ 0,03 * 0,5) = 100000 * 1,015= 101500

The proposed formula is only suitable for interest on which is calculated once a year. If interest on the deposit is credited several times a year, for example, every month, then you will have to calculate interest using a complex banking formula:

M = D * (1 + r/100*30/360)^(360/30).

Types of banking risks

The types of risks of financial institutions are divided into general and banking; it is quite difficult to distinguish between them. In the process of operation, an enterprise faces various problems. In specialized literature, types of banking risks are grouped by financial transactions:

1. banking risk (this includes risks associated with the activities of the bank and general ones, depending on external influences);
2. credit risk (arises due to overdue debts of clients or enterprises receiving loans from the bank);
3. currency risk (associated with changes in exchange rates);
4. interest rate risk (fluctuations in interest rates force the bank to pay increased interest for using money or receive less income from loans provided);

There are risks in any enterprise, so it is important for a bank not to avoid them, but to anticipate them and, as a result, reduce the threat to a minimum.