Fine for utility services was put in place from 01 January 2011. This provision is contained in the Law of Ukraine On Amendments to Article 2 of the Law of Ukraine "On temporary ban on citizens of Ukraine penalty fines for late payment of utility services" of 17 December 2010 № 2795-VI. The law provides that the assessment and collection of fines for late payment of utility services are made on the debt, which was formed from 01 January 2011.
From this we can conclude that the penalty for utilities does not apply to debts that arose before the new year. However, such debt may be recovered in the total order. Also, the requirements to collect debts for housing and utility services can be seen in the acting of the proceedings. Writ is a special form of judicial decision, which shall be enforceable by the rules established for enforcement. The feature of the acting proceedings is that the issuance of a court order made without hearing and call for consumer hearing his explanation. You can appeal against the order within ten days of receipt. Day of receipt is the date specified in the notice of postal service, the day putting in e-mail message marks the refusal to receive a copy of the order or comments about the lack of customers registered for residence. Information on place of residence is indicated in the passport of the consumer. Therefore, if the plaintiff does not want to make these decisions were made without his participation, he needs to monitor the mail of their place of registration, and also create conditions that will not consider such issues in the acting proceedings. The point is that mandative proceedings in disputes concerning the requirements of law. In case of dispute the right of such requirements should be considered in limitation proceedings, with the obligatory citation of the consumer. The confirmation of a claim of right may be correspondence related to poor quality or untimely ing utility markets.
Returning to the main topic, it should be noted that the law does not specify any particular penalty. I could find only one normative legal act, which provided for charging penalties for utilities, to introduce a ban on its collection . This is the Cabinet of Ministers of Ukraine dated 08.10.1992, number 572. It is envisaged that payments for utilities and other services are introduced every month, while making late payments specified additional penalty rate of 1 percent of the unpaid amount for each day of delay, but not more than 100 per cent of total debt. But, at last, and amended the said decree mentioned rule applies. Fine for utility services provided only in the draft Housing Code of Ukraine, which contains provisions that in case of late payment of utility services will be charged a fine amounting to 0.1 percent of the amount owed for each day of delay. It is easy to calculate that it will be more than 36% per annum. July 30, 2010 also came into force paragraph 3 part 1 of article. 96 of the Civil Procedure Code, which found that in arrears for payment of utility services charged per head and three percent per annum. The total amount of the annual burden on consumers could reach almost 40%. It should also recognize that a fine for utilities, to a greater or lesser amount, but will be accepted. Therefore, I consider whether a fine is levied for municipal services without restriction to any available and whether the penalty for utilities exceed the size of the debt?
Before that, we must draw your attention to the fact that according to Part 2 of Art. 551 Civil Code of Ukraine, the penalty can be installed in two ways, contract or act of civil legislation. In the first case, the penalty for utilities can be defined through a new agreement or amendments to existing. However, forcing consumers to sign the contract terms, which for him are not mandatory, no one can. In the second case, the penalty for utilities can be defined as an act of civil legislation. In this case, the penalty for utilities will be required for the consumer, whether or content of contractual relations. Under the Code, penalty for utilities can be defined not only by law but also other legal act.
A somewhat different approach laid out in the Law of Ukraine "On Housing Services". It is that fine for utilities can be established only by law (Paragraph 10 of Part 3 of art. 20 of the Law). A similar approach is enshrined in Paragraph 23 of the Cabinet of Ministers of Ukraine "On approval of service for central heating, hot and cold water and drain and a model contract for the provision of central heating, hot and cold water and drain" of 21 July 2005 № 630.
Therefore, there are two possibilities for resolving this issue. The first is that the Parliament of Ukraine has set a specific penalty for utilities, and the second - to make appropriate amendments to the Law of Ukraine "On Housing Services". In any case, no other authorities can not establish legislative penalty. This is because the Law of Ukraine "On Housing Services" has the priority in use. He was received later than the Civil Code of Ukraine and is special in relation to it. The same approach is enshrined in Part 2 of Art.1975 Draft Law of Ukraine "On Legal Acts". It is envisaged that in the event of contradictions (conflicts) between the various regulations that have the same legal force, the provisions of the legal act, which came into force later or provision of the legal act that establishes special provisions . In fact, the draft law set out rules that formed the theory of law and jurisprudence. However, the situation may change radically in the case of the Housing Code of Ukraine. In this case, the penalty for utilities will be obligatory.
In an effort to answer the question whether the term for which you may be fine for utilities, should address its legal definition. It is that fine for utility services shall be charged as a percentage of the outstanding amount for each day of delay. Therefore, the limitation period for its recovery is calculated for each day on which there are penalties for utilities separately. The right to sue for penalties for each day occurs on a daily amount, and limitation of action is calculated from the day when the creditor knew or should have known of the violation of law. Current legislation also provides that the requirements of applicable penalties levied a special limitation of one year. Therefore, the penalty for public utility services may be withdrawn only for the 12 months preceding the date of filing the claim.
You must pay attention to some features of using the period. Thus, the limitation set by law, may be extended by agreement of the parties and the agreement to increase the limitation period is concluded in writing. Therefore, before signing a contract to provide utility services or changes to it better to carefully examine all of its provisions. Also, current limitation is interrupted by the person committing the action that demonstrates its recognition of his debt or other obligation, and after interruption of flow limitation period begins anew. In addition, the limitation applies only to the court on ex parte application to the dispute, made before making its decision. So, in case of violation proceedings consumers should submit a written statement on the application of the period.
As for the penalty, the issue is governed by Part 3 of Article. 551 of the Civil Code of Ukraine. This provision provides that the penalty can be reduced by the court if it is 1) much larger than losses, and 2) under other circumstances, which are essential. In other words, the provisions of law aimed at preventing arbitrary enrichment at the expense of consumer interest and prevent a creditor in breach consumer. The Supreme Court of Ukraine has repeatedly emphasized that you can not impose a fine in an amount that exceeds the size of the debt. The term "substantially" and has a value konkretyzuvatysya court in each case. Relative to other circumstances, they can consider the degree of commitment to consumer story proved difficult property of the consumer, the presence of dependent young children, the interests of other parties which deserve attention. Despite the fact that the said provisions of the law is a right, not the duty of the court, however, if any such circumstances, they are taken into account by the court if it refers to customer requests and reduce the penalty. Thus, pursuant to Article 215 CPC of Ukraine court must without fail to motivate their opinion.
To sum up, we may state that
- Fine for utility services may not be payable on debt incurred last year,
- to determine the Verkhovna Rada of Ukraine a specific size, the penalty charged for utilities can not
- Fine for utility services may be subject to court only for the 12 months preceding the date of filing the claim, and
- in some cases penalties for utilities may be reduced by the court.
Источник - АДВОКАТ