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
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.
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.
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TNTP & Associates International Law Firm