FEATURES OF THE APPLICATION OF PENALTIES IN ECONOMIC AND CONTRACTUAL RELATIONS

Abstract

The article is devoted to clarifying the peculiarities of the application of fines in commercial and contractual relations. Taking into account the fact that provisions on the responsibility of the parties in case of improper performance or non-performance of an commercial obligation are mandatory for the commercial contract, special attention is paid to the concept of "commercial and legal responsibility". It was found that the content of the latter is revealed through the concept of "commercial sanctions", which includes compensation for damages, fine sanctions, administrative-commercial and operational-commercial sanctions. The differences between fine sanctions and administrative-commercial and operational-commercial sanctions are revealed, one of which is the goal of compensating property losses suffered by one party to the contract as a result of improper performance or non-performance of commercial obligation by the other party. Special attention is paid to different approaches in civil and commercial legislation to the understanding of liquidated damages, fine and penalty. It was established that according to the Civil Code of Ukraine fine and penalty are types of liquidated damages, while the Commercial Code of Ukraine singles out fine, penalty and liquidated damages as types of fine sanctions. Attention was drawn to the fact that several types of fine sanctions can be applied for one violation of commercial obligation, which does not contradict the provisions of Article 61 of the Constitution of Ukraine. It was determined that the Civil Code of Ukraine, unlike the Commercial Code of Ukraine, does not limit the subject of liquidated damages only to monetary a sum of money, but also includes movable and immovable property. It was found that the type and amount of fine sanctions are independently determined by the parties when concluding the contract, which sometimes leads to excessively large amounts of compensation compared to the losses incurred. At the same time, in order to maintain the balance of the interests of the debtor and the creditor, the law gave the commercial court the right to reduce the amount of fine sanctions, taking into account a number of circumstances. The analysis of some court decisions made it possible to draw a conclusion about the different amount of reduction of fine sanctions imposed by the courts, which in some cases reduces their value in commercial and contractual relations and indicates the need to determine at the legislative level the limits of reducing the size of such sanctions.