The defendant asked the court of cassation to annul the decision of the previous instances, which satisfied the claim for the collection of a penalty for late payment of alimony for the son.
The Supreme Court, as part of the panel of judges of the Second Judicial Chamber of the Civil Court of Cassation, annulled the decisions of the previous courts, making the following legal conclusions.
Family relations are regulated on the basis of justice, good faith and reasonableness, in accordance with the moral principles of society (Part 9, Article 7 of the Code of Ukraine).
In the case under review, the panel of judges had to resolve the following legal issues:
• how partial payments (partial payment) are taken into account in the presence of alimony arrears for previous periods (previous period);
• how to understand the wording in the legal norm "no more than 100 percent of debt".
Provisions of the Central Committee of Ukraine are subsidiarily applied to regulate family relations. The Civil Code of Ukraine does not provide for how claims for monetary obligations are repaid, so in this case the norms of civil legislation are to be applied, namely Art. 534 of the Civil Code of Ukraine. Therefore, when making partial payments of alimony, such funds are first credited to the repayment of alimony arrears that arose in the previous month (previous months), starting from the first month of its occurrence, and only later, in the absence of arrears, to repayment of the payment for the current month.
If, using the wording "not more than 100 percent of the debt", which is contained in para. 1 h. 1 tbsp. 196 of the Criminal Code of Ukraine, to limit the calculation of the penalty to the current debt (that is, the one that exists for all months as of the time of filing the claim or at another time), then when filing a claim for the period when there was a delay, and at the time of filing there is no current debt of the claim, there will be no limit, which the penalty should not exceed. As a result, it is obvious that it is necessary to distinguish between the total current arrears and alimony arrears for a certain month.
The Supreme Court, taking into account the principle of reasonableness, believes that since the penalty is a variable value, the basis for the calculation of which is the alimony arrears for a certain month, the wording "no more than 100 percent of the arrears" means that the amount of the penalty should not exceed the amount of the arrears, on which it is calculated. If the plaintiff, taking into account the principle of dispositiveness, filed a claim for the collection of a penalty for several months, the amount of the penalty for these months should not exceed the total amount of the debt for which it is accrued.
Resolution of the Supreme Court dated January 19, 2022 in case No. 711/679/21 (proceedings No. 61-18434св21) – https://reyestr.court.gov.ua/Review/102704816 .