On the Protection of Citizens' Rights
In accordance with Part 1 of Article 636 of the Civil Code of the Republic of Belarus (hereinafter referred to as the Civil Code), under a financial lease (leasing) agreement (hereinafter referred to as a financial lease agreement), the lessor (leasing company), being a legal entity or an individual entrepreneur, undertakes to acquire ownership of the property specified by the lessee (leaseholder) from the seller (supplier) determined by him and to provide the lessee (leaseholder) with this property, which is the subject of the financial lease agreement, for a fee for temporary possession and use.
In accordance with subparagraph 1.3 of Decree of the President of the Republic of Belarus No. 99 of February 25, 2014 "On Issues of Regulating Leasing Activities," leasing activity is entrepreneurial activity of acquiring property by the leasing company for its subsequent provision for a fee for temporary possession and use to a legal entity or individual (hereinafter referred to as the leaseholder).
Inspections have established that to obtain a loan for a small amount, citizens were offered to conclude a purchase and sale agreement for mobile phones owned by them, and then a lease agreement, according to which the same phone was transferred for use to its owner, but with the payment of lease payments in amounts equivalent to dollars. For late payments, penalties were established that were not commensurate with the amounts received.
For example, citizen K. intended to borrow money for personal needs, and therefore took advantage of the offer of the ATL Credit Center to issue money at the lowest interest rate. To obtain the loan, he applied to the regional office of AutoTradeLeasing LLC.
The company's employee drew up all the necessary documents for obtaining 300 rubles, which he signed.
Thus, according to the sales and purchase agreement, allegedly executed in Brest, K. sold his mobile phone to OOO "Technogik" for 300 rubles. At the same time, K. did not intend to sell his mobile phone, which he had previously purchased from OOO "MTS" on an installment plan.
Further, under the operational leasing agreement, OOO "AvtoTreydLizing" undertakes to acquire ownership of the leased asset chosen by Lessee K. and to transfer it to Lessee K. for temporary use, for which it undertakes to make lease payments according to the payment schedule and to return the leased asset after 12 months, as well as to fulfill other conditions stipulated by the agreement. At the same time, according to the agreement, after Lessee K. has fully fulfilled his obligations under this agreement, the ownership of the leased asset remains with the Lessor.
According to the acceptance certificate of the leased asset, K. received his own phone for use, valued at 443.55 rubles, which is equivalent to 166.67 USD at the National Bank's exchange rate at the time of the agreement's conclusion. According to the lease payment schedule, the lease agreement price amounted to 466.32 USD, payable within 12 months, and if paid early within 2 months - 197.90 USD.
Having returned the received 300 rubles, citizen K. ceased further payments, believing that he had fulfilled his loan obligations. However, under the terms of the agreement, he did not pay the full cost of the received phone and the lease payments tied to the dollar exchange rate, for which reason sanctions were imposed on him in the amount of 1800 rubles.
In accordance with clause 2 of Article 171 of the Civil Code, a sham transaction, i.e., a transaction made with the intention of concealing another transaction, is void. The rules relating to the transaction that the parties actually intended shall apply to it, taking into account the nature of the transaction.
The circumstances of the conclusion of the above-mentioned sales and purchase and operational leasing agreements indicate that these transactions were made with the intention of concealing a money loan transaction.
According to the Decree of the President of the Republic of Belarus No. 394 of 23.10.2019 "On the Provision and Attraction of Loans", the activity of providing three or more loans within a calendar month to one or more borrowers in an amount not exceeding 15,000 basic units per borrower on the day of concluding the agreement (hereinafter referred to as a microloan) is recognized as microfinance activity.
At the same time, LLC "AvtoTreyoLizing", not being a microfinance organization, in violation of the current legislation, provided a microloan to a citizen under the guise of property transfer under a lease agreement.
By virtue of Part 1 of Article 170 of the Civil Code, a transaction the commission of which is prohibited by law is void. According to Part 3 of Article 170 of the Civil Code, if only one of the parties to such a transaction has intent, everything received by it under the transaction must be returned to the other party, and what was received by the latter or was due to it in compensation for performance shall be recovered for the benefit of the Republic of Belarus.
At the claim of the Prosecutor of the Vitebsk region, by the decision of the court of the Moskovsky district of Minsk, the transactions concluded between K., LLC "Avtogik" and LLC "AvtoTreyoLizing" were recognized as void with the application of the consequences established by Part 3 of Article 170 of the Civil Code.
Head of the Department for Supervision of the Legality of Judicial Decisions in Civil Cases I.N. Titkova