LEGAL APPROACHES OF JUDICIAL PRACTICE IN APPLYING PARAGRAPH 3 OF ARTICLE 328 OF THE CIVIL CODE OF THE RUSSIAN FEDERATION

Abstract

The article provides an analysis of the judicial practice of the application of Paragraph 3
of Article 328 of the Civil Code of the Russian Federation in the wording that came into force on June
1, 2015, according to which the party of the obligation before the provision of the obligation due from
it is not entitled to demand in court from the other party the performance of the obligation. The author,
in particular, provides examples of approaches developed in judicial practice for certain categories of
disputes, such as: recovery of advance payments, penalties for non-payment of the advance amount,
recovery of insurance compensation, etc. As a result of the analysis of judicial practice, it was concluded that the courts generally adhere to the position that it is impossible for a party that has not fulfilled
its obligation to compel the other party to fulfill a counter obligation.

The application by the courts of the legislative provision in question is regarded as corresponding to its meaning. At the same time, the author does not see the need to make exceptions when applying this rule, proposed by some scientists, since they do not relate to the
scope of its regulation. The author takes into account that the dispositivity of the analyzed legislative provision allows the parties to the transaction to provide in the contract the possibility
of requiring the court to fulfill the obligation by the party that has not made a counterprovision. It is concluded that the rule under study does not restrict the right to file a claim in
court in the procedural sense.