Determination of Illicit Profits for Criminal Liability and Penalty for Usurious Lending in Civil Transactions
How is the Illegitimate Gain Amount Determined for Criminal Liability?
According to Article 6 of Resolution 01/2021/NQ-HDTP on determining the amount of illegitimate gains for criminal liability, it is stipulated as follows:
Determining the Illegitimate Gain Amount for Criminal Liability
1. In cases where high-interest loans have expired as per the agreement, the illegitimate gain amount to determine criminal liability includes interest and other illegal charges the borrower has to pay to the lender, minus the corresponding amount of interest at the highest rate stipulated by the Civil Code for the entire loan term.
2. In cases where high-interest loans have not expired as per the agreement but are discovered, the illegitimate gain amount to determine criminal liability includes interest and other illegal charges the borrower has to pay to the lender, minus the corresponding amount of interest at the highest rate stipulated by the Civil Code up to the point the competent authority discovers and halts it.
In cases where the borrower has prepaid interest and other illegal charges, the illegitimate gain amount to determine criminal liability includes interest and other illegal charges the borrower has actually paid to the lender, minus the corresponding amount of interest at the highest rate stipulated by the Civil Code.
Thus, the illegitimate gain amount to determine criminal liability is determined according to the above regulations.
How is the Illegitimate Gain Amount Determined for Criminal Liability? What are the penalties for those who commit the crime of high-interest loan in civil transactions? (Image from the Internet)
What Cases of High-interest Loans are Subject to Criminal Liability?
According to the provisions of Article 7 of Resolution 01/2021/NQ-HDTP on criminal liability in specific cases as follows:
Criminal Liability in Specific Cases
1. In cases where the perpetrator commits many acts of high-interest lending, and the illegitimate gain of each act is from VND 30,000,000 or more, if each act has not yet been prosecuted and the statute of limitations for prosecution has not expired, they shall be subject to the applicable penalty framework according to the total illegitimate gain and shall also be subject to the aggravating circumstance of “committing the crime two or more times” as stipulated in Point g, Clause 1 of Article 52 of the Criminal Code.
2. In cases where the perpetrator commits many acts of high-interest lending, and the illegitimate gain of each act is less than VND 30,000,000 but the total illegitimate gain is from VND 30,000,000 or more, and these acts have never been subject to administrative sanction, and the statute of limitations for administrative sanction has not expired, they shall be subject to prosecution with the applicable penalty framework according to the total illegitimate gain of the high-interest lending acts, without applying the aggravating circumstance of “committing the crime two or more times” as stipulated in Point g, Clause 1 of Article 52 of the Criminal Code.
3. In cases where the perpetrator commits many acts of high-interest lending, including at least one act with an illegitimate gain of VND 30,000,000 or more, and this act has not expired the statute of limitations for prosecution; and other acts with an illegitimate gain of less than VND 30,000,000 have not been subject to administrative sanction and the statute of limitations for such sanctions has not expired, they shall be subject to prosecution with the applicable penalty framework according to the total illegitimate gain of the high-interest lending acts, without applying the aggravating circumstance of “committing the crime two or more times” as stipulated in Point g, Clause 1 of Article 52 of the Criminal Code.
4. In cases where the lender uses various illegal methods to collect debts (such as using force, threatening to use force, intimidating, causing injury, causing health damage, or other actions to take property, etc.), they shall also be subject to criminal prosecution for the corresponding crime, if the elements for the crime are met.
5. In cases where the lender aims to gain illegitimate profits from VND 30,000,000 or more, but due to reasons beyond their control, has not gained such profits or has gained less than VND 30,000,000, they shall be prosecuted under the penalty framework corresponding to the total amount of illegitimate gains they intended to achieve. The determination of the illegitimate gain amount is done following the guidance in Article 6 of this Resolution. When determining the penalty, the Court shall apply Article 15 and Clause 3 of Article 57 of the Criminal Code on attempted crimes.
Thus, according to the regulations, the above-mentioned cases of high-interest loans are subject to criminal liability.
How are Perpetrators of High-interest Loans in Civil Transactions Punished?
According to Article 201 of the Criminal Code 2015 (amended by Point i, Clause 2, Article 2 of the Law amending the Criminal Code 2017) on the crime of high-interest lending in civil transactions, it is stipulated as follows:
Crime of High-interest Lending in Civil Transactions
1. Whoever, in civil transactions, lends with an interest rate 5 times or more of the highest rate stipulated in the Civil Code, and gains illegitimate profits from VND 30,000,000 to less than VND 100,000,000, or has been administratively sanctioned for this act or has been convicted of this crime, has not had their criminal record expunged but commits the crime again, shall be fined from VND 50,000,000 to VND 200,000,000 or be subject to non-custodial reform for up to 3 years.
2. Committing the crime where illegitimate profits are VND 100,000,000 or more shall be subject to a fine from VND 200,000,000 to VND 1,000,000,000 or imprisonment from 6 months to 3 years.
3. The offender may also be subject to an additional fine from VND 30,000,000 to VND 100,000,000, prohibited from holding certain positions, prohibited from practicing certain professions or doing certain jobs from 1 year to 5 years.
Thus, those who commit high-interest lending in civil transactions shall be punished according to the following penalty frameworks:
- First Framework: fined from VND 50,000,000 to VND 200,000,000 or non-custodial reform for up to 3 years for those in civil transactions who lend with an interest rate 5 times or more of the highest rate stipulated in the Civil Code, gain illegitimate profits from VND 30,000,000 to less than VND 100,000,000, or have been administratively sanctioned for this act or have been convicted of this crime, have not had their criminal record expunged but commit the crime again.
- Second Framework: fined from VND 200,000,000 to VND 1,000,000,000 or imprisoned from 6 months to 3 years when committing the crime where illegitimate profits are VND 100,000,000 or more.
Additionally, the offender may also be fined from VND 30,000,000 to VND 100,000,000, prohibited from holding positions, practicing certain professions or doing certain jobs from 1 year to 5 years.
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