New legal highlights help “handle” debtors who are procrastinating and borrow without paying

Many debtors, when the debt is due, even though they still eat well, wear nice clothes, have luxury cars and houses, but refuse to repay the loan, make the lender feel sad and bitter.

Owner The debt cannot be recovered using all civil measures, and is even challenged and threatened by the debtor. Extremely poor lenders who are forced to submit a complaint to the police often receive a decision not to prosecute the case, requesting to contact the Court to resolve civil disputes.

After that According to these instructions, the lender begins a process of litigation in the first instance court and the court of appeal that lasts for many years. After the judgment is issued, the winner must also go through the judgment enforcement agency to request enforcement. At this time, the debtor was wise and cunning in dispersing all his assets, so the enforcement agency was helpless and had to temporarily suspend the execution of the judgment.

The lender only won the case on paper. holding a few A4 sheets to keep as a souvenir of a bitter and foolish incident from lending, suing, and enforcing a judgment.

Discussing this issue, lawyer Quach Thanh Luc, Director of the Law Firm – Hanoi Bar Association, shared the complex reality of debt evasion as above when promulgating the Penal Code. 2015, amended and supplemented in 2017. The National Assembly added the case of “Borrowing and renting property from others or receiving property from others in the form of contracts… until the deadline to return it even though there are feasible conditions.” ability but deliberately does not pay” at point a, clause 1, Article 175 of the Penal Code 2015 on the crime of abuse of trust and appropriation of property.

When the National Assembly adds the above grounds to handle Criminal law has created a legal corridor to criminally handle lenders who have the ability but deliberately refuse to repay their debts. Litigation agencies and lenders hope that this will be a breakthrough to resolve the problem of bad loans.

However, in reality, after being issued and effective, this new regulation The force from January 1, 2018 has not been applied and no personal information has been processed for the crime of abuse of trust and appropriation of property in the case of “Borrowing and renting other people’s property or receiving property. another person’s property in the form of a contract… when it is time to return it, even though it has the ability, but deliberately does not pay” at Point a, Clause 1, Article 175 of the 2015 Penal Code.

Why is such a useful regulation not applied in practice?

Explaining the above concerns, lawyer Luc said that the collection provides evidence that the debtor have the ability to have the ability to face many difficulties in current conditions because it is very difficult for people to collect documentary evidence from debtors and agencies that issue documents certifying ownership of real estate and vehicles.

Agencies The prosecutor’s office is concerned that there is still a lack of legal guidance documents to specifically guide the grounds for determining what constitutes “conditional ability but intentional failure to pay“.

In answer 01/GD-TANDTC dated July 25, 2016 of the Supreme People’s Court, it was emphasized that the Council of Judges of the Supreme People’s Court will provide detailed instructions through Resolution for the situation “at the time of return, despite having the ability to pay, but intentionally not paying“. However, by 2023, the Resolution guiding this content has not yet been issued by the Supreme People’s Court.

New bright spot!

< p>In the face of these difficulties, recently the Supreme People’s Court and the Supreme People’s Procuracy have given relatively detailed and specific instructions on the situation of “having the ability but deliberately not paying”. Specifically:

April 3, 2019 in section 6, part I, Notice No. 64/TANDTC-PC “Reporting to announce the results of online answers to some criminal and civil problems and administrative proceedings” of the Supreme People’s Court has affirmed: “In case when the time comes to return property, they have the ability but deliberately do not pay (have house, land, property, etc.) But those who delay in dispersing or act against the distraint and recovery of assets…) will be subject to criminal liability according to the provisions of Article 175 of the 2015 Penal Code“.

On November 15, 2023, Official Dispatch No. 4962/VKSTC-V14 of the Supreme People’s Procuracy further answered: “To satisfy the objective behavior of criminals according to the provisions at point a Clause 1, Article 175 of the 2015 Penal Code, both conditions must be met:

(1) by the deadline to return the money;

(2) at the deadline for returning the money, the offender has the ability to return the property but intentionally does not pay. Therefore, in the above case, although the subject stated that he did not have the money to return it due to the number That money has been spent (going out, drinking, singing karaoke…) but the competent authority still has to investigate and clarify whether the subject has the ability but deliberately does not pay, then there is a basis to apply point a, clause 1, Article 175. Penal Code 2015″.

Thus, according to the two legal instructions above, the prosecution agency has clarified and specifically explained the acts and signs as a basis for the prosecution agency to judge. borrower behavior price:

i) Conditionalcapable< em>: Own and have the right to use real estate or other assets… partially or in excess of the loan value and can be transferred to the lender to fulfill the debt repayment obligation when due; ii) But intentionally not paying: Indecent evacuation or acts of resistance to asset recovery…

More liability The responsibility of proving the above elements lies with the agency conducting the proceedings. “competent agencies still have to investigate and clarify whether the subject has the ability but deliberately does not pay, then there is a basis for applying this point. a Clause 1, Article 175 of the 2015 Penal Code”.

After the Supreme People’s Procuracy and the Supreme People’s Court issue more detailed guiding documents, it is hoped that Borrowers who deliberately do not repay the loan despite meeting the qualifications will be investigated and prosecuted before the law. This really has great significance in ensuring the interests of lenders, helping to stabilize the development of debt relationships, which are very common in today’s society.

However, it is difficult to Applying the law is thoroughly unified. Lawyer Luc recommends that in the coming time, the three agencies conducting proceedings, including the investigation agency, the People’s Procuracy, and the People’s Court, need to issue additional Joint Circulars to unify how to handle criminal acts. violating the above crime to avoid the situation where each document stipulates differently, leading to fragmented regulations that make it difficult for people to access and apply.