INTERESTS IN CASE OF VIOLATION OF THE LOAN AGREEMENT (CREDIT) IN THE LIGHT OF THE CONCLUSIONS OF THE CONSTITUTIONAL COURT OF UKRAINE

Abstract

The article provides a general description of the loan. Attention is drawn to such a feature of the loan agreement as its repayment in the form of interest payments for the use of funds. A scientific and practical analysis of the Judgment of the Constitutional Court of Ukraine dated June, 22nd, 2022 No. 6-р(II)/2022 in the case of the constitutional complaint of the Joint-Stock Company "State Savings Bank of Ukraine" regarding the compliance with the Constitution of Ukraine (constitutionality) of the requirement of the first sentence of the first part of Article 1050 Civil Code of Ukraine. The legal regulation of interests for the use of someone else's funds (interest as a fee for using a loan on the basis of Part 1 of Article 1048 of the Civil Code of Ukraine) and interests for delay in the fulfillment of a monetary obligation (annual interests as a measure of the borrower's responsibility on the basis of Part 2 of Article 625 Central Committee of Ukraine). Scientific publications of different periods on the issue of simultaneous application of the specified types of interests after the loan repayment period are cited. It is justified that the subject of the constitutionality check should be the provisions of Part 1 of Art. 1048 of the Civil Code of Ukraine, because this norm was incorrectly applied in the final court decision involving the subject of the constitutional complaint (the bank). It is argued that the Constitutional Court of Ukraine had grounds for declaring unconstitutional the provisions of Part 1 of Art. 1048 of the Civil Code of Ukraine in the aspect of the impossibility of receiving by lender of interests from the borrower for the use of the loan after the loan repayment deadline and before the actual repayment of the debt. It is emphasized that the Judgment adopted by the Constitutional Court of Ukraine is not legally binding for the courts when applying the relevant provision of the law as an order to give the law an appropriate interpretation and is not a basis for bringing judicial practice into line with the formulated conclusion. It is concluded that change of negative judicial practice of incorrect application of the provisions of Part 1 of Art. 1048 of the Civil Code of Ukraine, which is based on such an interpretation of the specified norm, which contradicts the Constitution of Ukraine, can be possible only through recognizing the specified provision as unconstitutional.