The legal position on foreign currency lending.

 Since the beginning of the crisis in 2008, millions of citizens of Ukraine received loans from banks in foreign currency Ukraine, faced with the problem of rise in foreign currency against the local currency - the hryvnia and consequently the indebtedness.
Banks began mass appeal to the courts of Ukraine claim for collection on concluded credit agreements and borrowers assert their rights infringed by presenting various claims against banks.
According to statistics provided by the appellate courts of Ukraine in 2009 for national courts of first instance were 197.6 thousand. Civil cases arising from the credit relationship.
In this regard, 07.10.2010, the judge of the Supreme Court of Ukraine Luspenykom DD individually prepared generalization of judicial practice civil proceedings arising from credit relations (2009-2010 gg.) who were negotiating at the meeting of the Chamber of Civil Cases of the Supreme Court of Ukraine and courts of Ukraine sent for consideration and use (take measures to eliminate shortcomings the administration of justice).
This document essentially actually strengthened the rights of creditors and znetsinyv rights of ordinary citizens.
Thus, the "legal position Luspenyka DD" to resolve disputes related to agreements and contractual obligations in foreign currency is to ensure that banks legally granted loans in foreign currency to individuals on the basis of a banking license and written permission to trade in currency values.
Meanwhile, such a conclusion can not agree, as follows.
Since 01.01.2004 entered into force the new Civil Code of Ukraine, which is the main act of civil legislation of Ukraine and has supreme legal force (Article. 4 CC of Ukraine).
In content, ch. 2 tbsp. And 192 h. 3. 533 CC of Ukraine the use of foreign currency in Ukraine for obligations may only be, the terms and conditions established by law.
This is consistent with prescriptions and art. 99 of the Constitution of Ukraine and n. 1 h. 2 tbsp. 92 of the Constitution of Ukraine that the laws of Ukraine established the status of foreign currency in Ukraine.
By the relations that arose after the entry into force of the Central Committee of Ukraine shall apply the provisions of this Code.
However, by this time in Ukraine there is no law that would regulate the procedure for the use of foreign currency in Ukraine, and The Bank and obliges citizens of Ukraine to make illegal currency transactions, guided only by the sub-normative acts to be taken pursuant to law, and not a substitute for the law.
At this time only a subordinate legal act that regulates legal relations in the sphere of currency regulation is the Decree of the Cabinet of Ministers of Ukraine "On Currency Regulation and Currency Control» № 15-93 from 02.19.1993 year.
In terms of powers of the Cabinet of Ministers of Ukraine has no right to usurp the powers of the legislature, which he did not and they were his only delegated legislative body - the Supreme Council of Ukraine.
Therefore, in view of the rule of law in force in Ukraine and given the rule of law in relation to the regulations, no one can be forced to perpetrate illegal acts.
Thus, in the absence of a special law issued by the National Bank of Ukraine from 01.01.2004 (both general and as individual) licenses for foreign currency transactions in lending is illegal because it does not meet the requirements of the current Civil Code of Ukraine.
Consequently all currency transactions on credit agreements are invalid, since the Decree of the Cabinet of Ministers of Ukraine does not replace a special law had to be passed on 01.01.2004.
No law, therefore pursue financing and payments in foreign currency is illegal.
Banks refer to the fact that in this special law is the Law of Ukraine "On Banks and Banking Activity", which is wrong because the law regulates banks.
Thus, p. 1 of the Act defines the object and purpose of this law: "This law defines the structure of the banking system, economic, organizational and legal basis of the establishment, reorganization and liquidation of banks."
Article 3 of the Law stipulates that the law regulates relations arising in the establishment, registration, reorganization and liquidation of banks.
In addition, in respect of the law at the time, he preferred the law, which was adopted later.
Law of Ukraine "On Banks and Banking Activity" was adopted 07.12.2000 and entered into force after its publication, the Civil Code of Ukraine - from 01.01.2004.
Thus, it is again the desire to legalize illegal to provide continuous visibility legality lawlessness.
Outlined the legal position used in many court cases and passed all courts but no court of appeal did not satisfy the application filed but not denied.
So refusing to meet a claim for recognition of credit contracts invalid on the grounds stipulated hours. 1 tbsp. And 215 h. 1 tbsp. 203 CC of Ukraine, as being not in compliance with the above laws, the courts have not provided any refutation or argument confirming the reason for such refusal.
As a result, the motivation of all courts is reduced to mechanical duplication "legal position Luspennyka", which was given away to other legal aspects. In cases with the above legal position, the impression that judicial decisions concerning some other things but not this.
Source:
Member of the Board of Legal Affairs and co-director of the commission on social and labor issues MHOU "Fourth Wave", member of the Board of Legal Affairs and Chairman Mykalayivskoho regional branch of the All-Ukrainian NGO "Ukrainian Mutual" Odessa regional member of the National Union of Journalists of Ukraine Vasyl L. Samolyuk.