Author: Phạm Huyền

Currently, the form of lending through applications (apps) is appearing more and more. However, the majority of loan applications are not reputable. In many cases, the “app” advertises non-interest, or low-interest loans but after borrowers complete the procedures, they find that the loan’s interest rate is up to 10-20%/month and the repayment period is short. This makes borrowers quickly lose the ability to pay the debt and the current debt is many times larger than the original debt. Be threatened, texted, called to urge debt, posted untruthful information on social networks, this affects not only themselves but also those who know borrowers. When the borrower “accidentally” borrowed money through “app”, what should the borrower do?

1. Be aware before borrowing money through “app”

In all circumstances, prevention always takes precedence over resolving and overcoming consequences.

Before borrowing money through “app”, the borrower should thoroughly research the loan app including the company or individual that owns the app; online comments and reviews about the app that borrowers intend to borrow; limits, interest rates, procedures of loan.

In case the borrower cannot find information about the loan app or the information is unclear, the evaluation of the app is not high, there are signs of fraud or loaning with high-interest rate, the borrower should not borrow money through that app.

According to Article 468 of the Civil Code, if the parties have an agreement on the loan interest rate, the interest rate must not exceed 20%/year of the loan amount, unless otherwise specified by other relevant laws. If the parties have an agreement on interest payment but do not specify the interest rate, the interest rate is determined at 10%/year. In the case of a loan without interest but when due, the borrower does not repay or does not pay in full, the lender has the right to demand interest at the rate of 10%/year on the amount of late payment corresponding to the period of delay. The borrower should be careful when the application’s loan interest rate exceeds the rate specified in the Civil Code.

2. In case the borrower “accidentally” borrowed money through “app”, what should the borrower do?

There are some cases when the borrower researched, the loan app advertised non–interest or low-interest loans. But after the borrower completed the procedures, the information about the interest rate and repayment period has changed. The interest rate increases up to 10-20%/month and repayment period is within a few days.

In this situation, TNTP advises borrowers not to use this amount and should immediately refund the debt borrowed through the app on time to avoid arising additional interest.

In case the borrower has used the money and is no longer able to pay due to high-interest rate and the current debt is many times larger than the original debt, the borrower should stop paying principal, interest and denounce the Crime of lending heavy interest in civil transactions specified in Article 201 of the Penal Code 2015 (amended and supplemented in 2017): “Any person in a civil transaction who lends at an interest rate 5 times or more than the highest interest rate specified in the Civil Code, obtain an illegal profit of between 30,000,000 dong and under 100,000,000 dong or has been administratively sanctioned for this act or has been convicted of this crime, has not yet had criminal records remitted but continues to commit it, shall be subject to a fine of between 50,000,000 dong and 200,000,000 dong or non-custodial reform up to 3 years”.

Accordingly, the highest interest rate prescribed in the Civil Code is 20%/year. The interest rate that as 5 times as the highest rate is 100%/year, equivalent to 8.3%/month. Any application that lends at an interest rate of 8.3%/month or more and obtains an illegal profit of 30,000,000 dong or more (the money obtained from applying high-interest rate) shows signs of constitutes the Crime of lending heavy interest in civil transactions.

Above are the sharing and instructions of TNTP in case the borrower “accidentally” borrowed money through app. We hope this article is useful for you.

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Lawyer Nguyen Thanh Ha

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Voluntary compliance with proceedings in the Civil Proceeding Code 2015 by plaintiffs, defendants, and related persons in the case is essential. Especially, involving parties should know the meaning of a legitimate summon. Through the Precedent No. 12/2017/AL, TNTP is happy to share with readers our view of how to determine the first legal summon after the hearing is postponed.

1. SUMMARIZING THE LEGAL PRECEDENT

1. Q Joint Stock Company (“Q Company “) and T Company Limited (“T Company“) signed two (02) rubber seedling sale contract where T Company would sell Q Company 400,000 two-leaf gourd rubber seedlings for 2,800,000,000 Laos Kips.
2. Q Company exhibited that during the performance of the contract, T Company breached the contract and borrowed Bare Stump seedling, equipment and fertilizer from Q Company. Q Company, therefore, sought an order for VND1,720,888,500 compensation from T Company against its breaches of contract, penalties and costs of Stump seedling, equipment and fertilizer.
3. However, T Company asserted it fulfilled all obligations during the term of the contract. Meanwhile Q Company, because of lack of workforce and equipment, failed to receive seedlings when T Company delivered in the time as provided in the contract. As a result of the delay, a number of seedlings were dead. At the trial, T Company made a counterclaim from Q Company for VND4,967,026,000 (against cost of 400,000 seedlings under the contract and cost of the timber garden and the land pots). For the seedlings T Company had borrowed, T Company agreed to give back sufficient numbers of trees rather than cash compensation.
4. At the First Instance trial, the Quang Tri Province Court in the Verdict No. 08/2013/KDTM-ST dated 4 September 2013 (“First instance Verdict“), denied the motion of T Company. This verdict, afterwards, was appealed by both T Company and Quang Tri Province Procuracy. The Court of Appeal of Supreme Court in Da Nang, in its determination, (i) dismissed the appeal of T Company, (ii) denied of appeal of Quang Tri Province Procuracy, (iii) affirmed the given order with the reason that representative and lawyer of T Company did not appear at the hearings though they were validly summoned twice.
5. T Company continued to ask the Court of Cassation to conduct the judicial review of the appealed order. The Justice Council of the Supreme Court determined that the appeal of Chief Justice of Supreme Court was accepted, (ii) both verdict by Quang Tri Province Court and Court of Appeal of Supreme Court in Da Nang were set aside and (iii) the case was remitted to Quang Tri Province Court for hearing again in accordance with the law.
6. Accordingly, the Council of Judges of the Supreme People’s Court said: According to the minutes of the Appellate court dated 26 November 2013, at the hearing, all parties appeared according to the summons. However, the judge decided to postpone the hearing for the time the parties could provide additional evidence. In the next hearing, reopened 26 February 2014, the defendant and his lawyer did not appear in the courtroom. In the hearing that is reopened following the hearing the judge determined postponement because of his needs, if the defendant and his lawyer did not appear in the courtroom it should be deemed as their first absence. Accordingly, the court of appeal should determine that this is the first absence of the defendant and his lawyer in accordance with Clause 1, Article 199.1 and Article 266.2 in Civil Proceedings Code 2015 and therefore the hearing should be delayed. The court of appeal in fact stated that this was the second absence of the defendant and his lawyer, due to which it dismissed the case, which determination is absolutely not appropriate with Articles 199, 202, 266 in Civil Proceedings Code 2015. As a result, the defendant had been deprived of the right to appeal the case which seriously damages his legitimate interests.

2. CASE COMMENTS 

Based on the summary of the Legal Precedent, we have some comments as follows:

When the Court decides to postpone the appellate court hearing, there are two (02) main reasons from (i) The Court – when the Court decides to actively postpone the court hearing for specific reasons, or (ii) the parties or the representatives, the defender of legitimate rights and interests of involved parties being absent after they have been validly summoned by the Court.

Case 1: The reason for postponement the court session is from the Court

In this case, the Trial Panel may actively postpone the court hearing because the Court has not gathered sufficient evidence, or the representative of the Procuracy is absent, or due to other reasons specified by the Court in the Decision of postponement of the court hearing. Because the reason of the postponement of the court hearing is from the Trial Panel’s Decision, the absence of the involved parties or their representatives and the defender of legitimate rights and interests of the parties in this court session will not be considered as the absence for the first time.

When the court session is opened for the second time but the involved parties or their representatives or the defender of their legitimate rights and interests continue to be absent after the court validly summoned, they will be considered as absent for the first time.

When the court session is opened for the third time and the involved parties or their representatives and the defender of their legitimate rights and interests continue to be absent after the court validly summoned, they will be considered as absent for the second time.

Case 2: The reason for the postponement of the court hearing is from the absence of the appellant or their representative or the defender of legitimate rights and interests after being validly summoned by the Court for the first time.

In this case, the Court shall postpone the trial due to the absence of the appellant or their representative or the defender of legitimate rights and interests after the first valid summon of the Court. Therefore, after the trial is opened for the second time, the appellant or their representative or the defender of legitimate rights and interests continue to be absent after being validly summoned by the Court will be considered absent for the second time.

Regarding the legal consequences of the appellant’s the second time absence after being validly summoned by the Court, according to the stipulations of Clause 3, Article 296 of the Civil Procedure Code 2015, the Court will consider the appellant giving up the appeal and the Court suspends the appellate trial against the appellant’s request for appeal. Therefore, it is important to determine the appellant is absent for the first time or the second time after being validly summoned by the Court in order to avoid suspending the appellate trial, and to determine this, it is necessary to clearly identify the cause of the postponement of the trial.

Thus, this is the view of the Supreme People’s Court on determining the case that the parties are validly summoned for the first time after the Court has postponed the trial.

3. PRACTICAL APPLICATION

For applying in practice, we recommend involving parties, especially the appellants:

• When validly summoned by the Court, the involved parties, especially the appellants or their representatives or lawyers need to schedule for attendance in the appellate hearing, because they are the object of the appeal, the rights of the object are depended on the appeal in the proceedings process. Even if the involved parties had come to the courtroom but the judge decided to postpone the hearing afterwards, you at least would know the reasons for the postponement, never experience suspension like the case above.
• In other similar cases, if the involved parties were absent after they were validly summoned twice and the appellate file was dismissed once the judge postponed the first hearing, they, based on Precedent No. 21/2018/AL, could submit to the court of cassation to protect their legitimate rights and interests.

Above are our comments on the Precedent No. 21/2018/AL. We do hope that this article is useful for you.

Best regards.

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Lawyer Nguyen Thanh Ha

Email: ha.nguyen@tntplaw.com

Nowadays, in activities of many companies, there are some cases that the company assigns an employee to hold money, assets to perform obligations and works for the company but after the employee held money, assets, that employee failed to perform its duty and cut off contact with the company. With such situations, can the employee who appropriate company’s money be prosecuted for criminal liability? If so, what crime would the employee be prosecuted? When facing a similar situation, what should companies do to get their money back? TNTP has legal shares for companies as follows:

1. Can the employee who appropriate company’s money be prosecuted for criminal liability?

According to TNTP’s working experience, if an employee holds the company’s money and assets but fails to perform its obligations and works assigned to them and cuts off contact with the company to turn the company’s money, assets into their own money, assets, that employee will be prosecuted for criminal liability.

2. What crime would the employee who appropriates company’s money be prosecuted?

Currently, there are 02 viewpoints on criminal prosecution for the act of the employee who appropriates company’s money, which is: (i) Crime of abusing trust to appropriate property specified in Article 175 of the Penal Code 2015 (amended and supplemented in 2017) (PC); or (ii) Crime of embezzling property specified in Article 353 of the PC.

To consider the employee’s behavior, it is necessary to distinguish the difference between the Crime of embezzling property and the Crime of abusing trust to appropriate property.

• Accordingly, the subject of the Crime of embezzling property must be a person holding a position, authority in a State agency or organization or in a non-state enterprise or organization; the offender takes advantage of the position, authority to appropriate property that offender is responsible for managing.
• Meanwhile, the subject of the Crime of abusing trust to appropriate property only needs to reach the age of criminal responsibility according to the PC; the offender legally appropriates property through the form of a contract such as borrowing, borrowing or renting; after obtaining the property, the offender flees, does not return such property but uses deceitful tricks to appropriate such property, or on time to return the property but deliberately not return despite having conditions and ability; or has used the property for an illegal purpose, which leads to an inability to return the property.

Based on the legal signs of the above 02 Crimes, TNTP analyzes the situation as follows:

• The subject: Employee holding position and authority is working in non-state enterprise and organization.
• Employee is assigned to be responsible for managing money and assets by the company. Therefore, the employee has certain rights over the money and assets of the company.
• The employee has taken advantage of his/her authority (the right to hold money and assets of the company to perform the assigned work) to appropriate money and assets that employee is responsible for managing.

Compared with the above two crimes, the employee’s criminal behavior shows signs of The Crime of embezzling property specified in Article 353 of the PC.

3. Solutions for the company when detecting employee abusing the position and authority to appropriate company’s property

When an employee has enough behaviors outlined in this case, the best solution for the company is to denounce the crime. The offender will be prosecuted for criminal liability and still has to return the appropriated money of the company.

Denouncing a crime to an employee can be done by the following steps:

• Step 1: Identify the agency responsible for receiving denunciations, information on crimes, and petitions for prosecution.
• Step 2: Select the form and conduct denunciation, report crime and propose prosecution.
• Step 3: Monitor the result of denunciation settlement, crime reports, and prosecution recommendations.

Above are legal sharings when company situations which employee appropriates company’s property. We hope this article is useful for you.

Best regards.

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Lawyer Nguyen Thanh Ha

Email: ha.nguyen@tntplaw.com

Nowadays, business and lending activities are very ebullient. However, these activities bring the risk of arising debts. Sometimes, the debtor delays and evades debt payment, making the debt collectors pressing. Being unable to collect the debt, the debt collector “releases anger” by defaming and smearing the debtor on social networks and assumes that these acts are not illegal.

Currently, how does Vietnamese law regulate the handling of acts of defaming, smearing, and reviling individuals and organizations on social networks? To answer the above question, we would like to offer legal advice so that individuals and enterprises having debts that need to be collected have appropriate debt collection measures.

1. Penalties for administrative violations

• Pursuant to Point a, Clause 1, Article 101 of Decree 15/2020/ND-CP stipulating penalties for administrative violations in the fields of post, telecommunications, radio frequencies, information technology, and electronic transactions dated February 3^rd 2020 (“Decree 15”), individuals and organizations will be fined from 10,000,000 VND to 20,000,000 VND for taking advantage of social networks to provide, share fake information, untruthful information; distort, slander, revile the prestige of agencies, organizations, honor and human dignity of individuals.

Individuals or organizations that conduct acts will be applied the remedial measure of forcing the removal of false or misleading information or information that violates the law due to the commission of a violation.

Accordingly, information on social networks with content that is considered humiliation or slander includes: (i) seriously offending the honor, prestige, and human dignity of others people; or (ii) fabricated, untrue information that infringes upon the honor, prestige, human dignity or causes damage to the lawful rights and interests of other agencies, organizations or individuals.

Thus, defaming and smearing the debtor on social networks may be considered as distorting, slandering, reviling the prestige of agencies, organizations, honor, and human dignity of individuals and will be sanctioned according to the provisions of Point a, Clause 1, Article 101 of Decree 15.

• Under Point e, Clause 3, Article 102 of Decree 15, individuals and organizations will be fined from 10,000,000 VND to 20,000,000 VND for acts of collecting, processing, and using the information of other organizations, individuals without consent or for the wrong purpose as prescribed by law. In addition, individuals or organizations that conduct acts may be applied the remedial measure of forcing the return of illegal profits obtained from committing acts of violation or forcing the revocation of numbers and telecommunications numbers store due to the commission of violations, or forcing the revocation of domain due to violations.

Thus, apart from the cases of collecting, processing, and using the information of other organizations or individuals with the consent of that organization or individual or according to the provisions of law, the act of collecting, processing, and using the information of the debtor for the purpose of defaming, smearing or reviling will be sanctioned according to the provisions of Point e, Clause 3, Article 102 of Decree 15.

2. Criminal prosecution

Depending on the nature and seriousness of the violation, individuals and organizations that defame, smear, revile the honor and human dignity of other individuals and organizations on social networks may be prosecuted for penal liability for the Crime of Humiliating others people in Article 155 of the Criminal Code 2015 (amended and supplemented in 2017) and the Crime of Slander in Article 156 of the Criminal Code 2015 (amended and supplemented in 2017), detailed as follows:

• Individuals and organizations may be convicted of the Crime of Humiliating other people if they conduct acts of “seriously offending the human dignity and honor of others people”.

This behavior has not distinguished the space of performance between a social network and reality; an individual or organization only conduct acts of a serious offense to the human dignity and honor of others, which may constitute the crime of humiliating others and be penalized to a warning, a fine of between 10,000,000 VND and 30,000,000 VND or non-custodial reform for up to 03 years, imprisonment from 03 months to 05 years, depending on the seriousness of the crime.

The law does not define exactly what is “seriously offending the human dignity and honor of others”. However, an act seriously offending the human dignity and honor of others on a social network can be understood that an organization or individual uploads images, recordings, videos, articles, links, websites containing contents and words that curse or revile other organizations and individuals.

• In addition, individuals and organizations can be convicted of the Crime of Slander if they fabricate or spread things that are known to be untrue in order to seriously offend the dignity and honor or cause damage to rights, legitimate interests of others; or fabricate other people to commit crimes and denounce them to the competent authorities.

Thus, in this case, if an organization or individual spreads or fabricates untruthful things on social networks in order to slander, smear, or revile the honor and human dignity of other organizations or individuals, it may constitute the crime of slander and shall be penalized a fine of between 10,000,000 VND and 50,000,000 VND, non-custodial reform for up to 02 years or imprisonment from 03 months to 07 years, depending on the seriousness of the crime.

The above are the legal consequences that individuals and organizations can be settled when they defame, smear the debtor on social networks. Apart from acts of defaming, smearing, TNTP has summarized illegal acts that enterprises and individuals must not do when collecting debts. Please refer to the article “06 things you can not do when collecting overdue debts“.

We hope this article was useful to you.

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Lawyer Nguyen Thanh Ha

Email: ha.nguyen@tntplaw.com

In business activities of enterprises, there are many cases that the debtor avoids paying the debt. At that time, many enterprises claimed that this was an abuse of trust to appropriate property and wanted to prosecute the debtor for criminal liability. In fact, for some transactions involving money and property, the boundary between civil liability and criminal liability is very thin. In this article, we will show the differences to distinguish between civil disputes and the crime of Abusing trust to appropriate property.

1. Elements of crime of Abusing trust to appropriate property

The crime of Abusing trust to appropriate property is specified in Article 175 of the Penal Code 2015. Accordingly, the elements constituting this crime are as follows:

The subject of the crime

The subject of the crime of Abusing trust to appropriate property is a person who is capable of criminal liability and reaches the age of 16 years or older.

Thus, the subject of the crime of Abusing trust to appropriate property can only be an individual.

The object of the crime

The object of the crime of Abusing trust to appropriate property is to infringe on property relations (money, things, valuable papers, …), not to infringe on personal relations (life, health, honor, dignity, intellectual property rights, …).

The guilty act (Actus reus)

– The offender acquire property legally, after obtaining the property, the offender uses fraudulent tricks, or flee to appropriate such property, or fail to pay it back despite conditions upon due date;

– The offender does not use fraudulent tricks, does not flee but uses such property for illegal purposes, which leads to the inability to return the property.

The criminal intent (Mens rea)

This is a direct willful crime because the intention of the offender is the desire to appropriate property. The purpose of appropriation is a mandatory sign.

2. Comparison of civil disputes and the crime of abusing trust to appropriate property

Similarities:

The crime of Abusing trust to appropriate property and the debtor’s act of avoiding debt payment has the following manifestations:

• The debtor acquires the property legally through a loan contract or contract of borrowing, renting, …; and
•  After acquiring the property:

• • The debt collector cannot contact the debtor and does not know the place of residence, work, current place of residence, or the address of the head office of the debtor; or
  • The debtor does not pay the debt despite being able to pay; or
  • The debtor uses the property for illegal purposes, which leads to the inability to pay the debt.

Differences

Due to the similarity in the manifestations, elements of fault and infringement on the ownership, enterprises often misunderstand that it is possible to denounce the debtor for abusing trust to appropriate property.

However, the first difference that enterprises can easily see to distinguish this is a civil dispute or a crime of abusing trust to appropriate property as the subject.

For the crime of Abusing trust to appropriate property, the subject can only be an individual. Therefore, in case the debtor is an individual, the enterprise may consider denouncing the crime at the competent authority. In case the debtor is an enterprise, even if the debtor intentionally conceals the operation address, contact information, or intentionally fails to pay despite being able to pay the debt, this is not considered a crime of Abusing trust to appropriate property.

To settle the case where the debtor is an enterprise, the debt collector may denounce the act of abusing trust to appropriate property against the person who directly signed the contract (usually the legal representative of the enterprise) or the person who directly holds and uses the property of the debt collector.

Secondly, enterprises need to clearly understand what is “flee” behavior.

Usually, when the enterprise cannot call the debtor; send documents, emails, messages to which the debtor has no response; or the enterprise does not know the place of residence and working of the debtor, the enterprise will assume that the debtor has fled.

However, according to the experience of TNTP, the most obvious act of “flee” to appropriate property is to flee from the locality, change the place of residence; or the debtor may stay at the place of residence but use actions that make the debt collector unable to contact such as not answering the phone, not replying to messages, changing phone numbers without notifying the debt collector. This is the act of fleeing.

If the debtor has notified the debt collector of his/her absence from place of residence or head office for a period of time, this absence shall not be considered as the act of fleeing. If the debtor has notified but then flees as mentioned above, it will become one of the elements constituting the crime of Abusing trust to appropriate property.

Above are legal sharings that help enterprises distinguish between civil disputes and the crime of Abusing trust to appropriate property. We hope this article is useful for you.

Best regards.

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Lawyer Nguyen Thanh Ha

Email: ha.nguyen@tntplaw.com

Currently, debt collection in Vietnam meets many difficulties because the debtors use a variety of sophisticated measures to avoid, prolong the payment period. When enterprises found out, these debtors had already taken measures. This makes the success rate of debt collection plummet. Therefore, identifying the avoidance behavior of the debtor is very important. It helps enterprises to prevent the behavior of debtors early. Therefore, this article will show the avoidance behavior of the debtor as well as solutions for enterprises when facing a similar situation.

1. The debtor hides the actual operating address

This is a behavior usually occurring when an enterprise collects the debt. In many cases, when an enterprise collects the debt, it is found that the debtor had no longer operated at the address stated in the Contract or Agreement; no longer operated at the headquarter address which the debtor registered with the competent authority. When the enterprises work and discuss with the debtor, the debtor is always intentionally hiding the actual operating address for the following reasons:

• Requesting the enterprise to send documents at the registered headquarter address, the debtor will appoint a person to receive;
• Discussing, working through messages and email is enough, does not agree to work directly;
• When the enterprise requests to provide the actual operating address, the debtor is always evasive and does not agree to provide.

When avoidance behavior of the debtor are implemented by hiding the actual operating address as above, the enterprise can collect evidence such as photos, videos to prove that the debtor does not operate at the registered address and submit a denunciation of the act “doing business in contravention of the scope, subjects, scale, time limit, area, location or items stated in the granted business license” to the competent authority (Clause 2 Article 6 Decree No. 98/2020/ND-CP). The enterprise should actively request the competent authority to accept the denunciation and sanction the debtor’s administrative violations. This can put pressure on the debtor, especially when the debtor is administratively sanctioned.

2. The debtor sells assets, withdraws capital of the company, and transfers the owner

Another avoidance behavior of the debtor is that the debtor sells all assets, withdraws capital of the company, and transfers the owner, the legal representative, leaves only the “shell” of the company.

Legally, the company is still operating or just suspended. However, in reality, the company has no longer operated and has no assets to pay the debt. These companies do not carry out dissolution or bankruptcy procedures because if they do it, they will have to pay all debts as well as taxes and financial obligations to the competent authorities. In addition, the information of the owner, the new legal representative is often vague, unclear, and cannot be verified.

This avoidance behavior of the debtor makes enterprises difficult because there is no specific information about the phone number, address of the owner, the new legal representative; unable to find and request the old owner, legal representative to pay the debt because the debtor is a legal entity; the debtor has no assets to pay. In this case, TNTP evaluates the possibility of successful debt collection as low.

To avoid this situation, enterprises need to regularly contact and monitor the debtor’s operating status before the debtor finishes selling assets, withdrawing capital, and transferring the owner, the legal representative. If the enterprise has grounds to believe that the debtor is facing financial difficulties or carrying out procedures to sell the company’s assets, changing the legal representative or the owner, the enterprise should apply the following measures to urge the debtor to pay the debt as quickly as possible because once the debtor has finished selling assets, it will be very hard for the enterprise to collect the debt.

Above are legal sharings that could help enterprises in identifying avoidance behaviors of the debtor, from which to propose appropriate debt collection plans. We hope this article is useful for you.

Best regards.

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