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“A Bank customer should not have to pay the Bank performs public functions of control, even for “unfair rates” — Tatiana Tereshchenko for

In item 4 of the "Review of the judicial practice of the Supreme Court of the Russian Federation N 1 (2021)" (approved by the Presidium of the Supreme Court on 07.04.2021) included the legal position of Judicial Board on civil cases of the armed forces, formulated in the Definition of 30.06.2020 in the case of N 5-КГ20-54-K2, 2-4461/2019:

The condition of the bank account agreement on the bank performing a transaction with the client's funds for an increased fee, which is questionable in accordance with the legislation on countering the legalization (laundering) of proceeds from crime and the financing of terrorism, contradicts the essence of the legislative regulation and is null and void.

The exercise of a public control function by a credit institution may not be used in private law relations as a means of extracting benefits in the form of an increased fee for performing such operations.

The position, in my opinion, as a whole, deserves support. It is notable for the fact that

  • contains an example of the interpretation of paragraph 4 of Article 1 of the Civil Code of the Russian Federation on the prohibition of taking advantage of unfair behavior,
  • contains an example of an insignificant contractual condition due to a contradiction to the essence of the legislative regulation with comments (which, of course, we would like to see more detailed…),
  • it demonstrates that the implementation of public functions in the context of private legal relations does not exclude, but, on the contrary, implies closer attention to the differentiation of private relations (the principle of dispositivity and freedom of contract) from public (other industry-oriented) relations, as well as the need for qualification taking into account the multiplicity of the legal status of the subject and its special legal capacity (bank) and the purposes of concluding a civil contract.

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