Specifically, the judgment 11/2019/HS-ST dated March 28, 2019 of the People's Court of Bac Ninh province has the following content:
"Nguyen Cong T, born in 1972, resides in zone 3, ward T, city B, Bac Ninh province, doing business in buying and selling used sewing machines. Through social relationships, T got acquainted with Mr. Vu Quoc Tr, born in 1971 at 45 R Street, V Ward, City B, Bac Ninh Province During the business process, from May 4, 2015 to August 2015, T borrowed money from Mr. Tr many times, Every time T borrowed money, he wrote "Loan letter". The contents of the "Borrowing papers" that Mr. Tr handed over were as follows:
- On May 4, 2015, T borrowed VND 50,000,000 from Mr. Tr, payment due date is May 13, 2015;
- On June 8, 2015, T borrowed VND 20,000,000 from Mr. Tr, payment due date is June 18, 2015;
- On August 13, 2015, T borrowed VND 100,000,000 from Mr. Tr, payment due date is September 13, 2015;
- On August 17, 2015, T borrowed VND 50,000,000 from Mr. Tr, payment due date is September 17, 2015;
- On August 26, 2015, T borrowed VND 50,000,000 from Mr. Tr, payment due date is September 26, 2015;
- On August 28, 2015, T borrowed VND 50,000,000 from Mr. Tr, payment due date is September 6, 2015. In this loan paper, on lines 11, 12, and 13, there is the words "On August 30, 2015, T took an additional 200,000,000 VND (Two hundred million even)".
The total amount that T borrowed from Mr. Tr on the above 06 loan papers is 520,000,000 VND.
After borrowing money from Mr. Tr, T used the money to trade in sewing machines, but due to a loss in business, T had no money to pay the debt when it was due. In September 2015, T ran away from home for the purpose of not having to pay Mr. Tr the above amount. During his escape, T had many times exited Cambodia through Moc Bai border gate, then returned to Vietnam but did not register for temporary residence in any locality, each place T only stayed for a short time for the purpose of debt evasion. On September 18, 2018, after learning that he was wanted by the investigative agency, T went to the Nam Dinh Provincial Police Investigation Agency to surrender. After that, the Nam Dinh Provincial Police handed over T to the Bac Ninh Provincial Police Investigation Agency for settlement".
On March 28, 2019, the People's Court of Bac Ninh city, Bac Ninh province sentenced Nguyen Cong T to 42 (forty-two) months in prison for abusing trust to win the property.
A person who borrows money to do business, and then due to bad luck, loses money to the point of bankruptcy is an unfortunate thing, no one wants it, but it is also a situation that more or less appears and gradually becomes normal in social life. But why, from an ordinary civil transaction, if there is a dispute, it should go to the civil court to resolve, but the result is to put one of the parties in the transaction in jail?
First of all, when Mr. T borrowed money, there were civil transactions, specifically, the two parties wrote loan documents, which is a form of the property loan contract. This contract is an agreement between the parties whereby the lender delivers the property to the borrower; when it is due, the borrower must return to the lender property of the same type in the correct quantity and quality and only pay interest if so agreed or prescribed by the law of Vietnam. The borrower is obliged to return the property and interest and other obligations as specified in Article 466 of the Civil Code 2015 :
Article 466. Obligations of borrowers to repay loans
1. Where the property lent is a sum of money, the borrower must repay the lender the loan in full when due. If the property is an object, the borrower must deliver to the lender an object of the same type, quantity and quality, unless otherwise agreed.
2. Where a borrower is not able to deliver an object, it may, with the consent of the lender, repay the value of the borrowed object, in cash, as at the time and place of delivery.
If in the above case, Mr. T is unable to repay the debt, and does not run away, then Mr. Tr (who lends Mr. T) wants to claim his rights, he can sue in court as a normal civil case. But because Mr. T escaped, the case had criminal signs. Specifically, the summary of the circumstances of borrowing property valued at over VND 4,000,000 and the act of fleeing to the appropriate property is enough to constitute the crime of "Abuse of trust to appropriate property". This crime is defined in Article 175 of the Criminal Code 2015 of Vietnam as follows:
Article 175. Abuse of trust to appropriate property
1. A person who commits any of the following acts to obtain another person property which is assessed at from VND 4,000,000 to under VND 50,000,000 or under VND 4,000,000 despite the fact that he/she has incurred an administrative penalty for property appropriation or has an unspent conviction for this offence or any of the criminal offences specified in Article 168, 169, 170, 171, 172, 173, 174 and 290 hereof or obtains a piece of property that is the primary means of livelihood of the victim or has a spiritual value to the victim shall face a penalty of up to 03 years' community sentence or 06 - 36 months' imprisonment:
a) Taking a loan, borrowing, leasing property of another person or receiving property of another person under a contract, then uses deception to appropriate it or refuses to repay the loan or return the property when the repayment or return of property is due despite he/she is capable of doing so.
b) Taking a loan, borrowing, leasing property of another person or receiving property of another person under a contract and then uses it for illegal purposes which result in the offender's inability to repay the loan or return the property.
2. This offence committed in any of the following circumstances carries a penalty of 02 - 07 years' imprisonment:
a) The offence is committed by an organized group;
b) The offence is committed in a professional manner;
c) The property obtained is assessed at from VND 50,000,000 to under VND 200,000,000;
d) The offence involves abuse of the offender's position or power or committed in the name of an agency or organization;
dd) The offender employs deceitful methods to commit the offence;
e) Dangerous recidivism;
Therefore, the law clearly stipulates that if borrowing or borrowing property valued at VND 4,000,000 or more and then absconding in order to appropriate the property, there are enough elements to constitute the crime of abusing trust to take over. take property.
Although in practice, a person, after borrowing, borrowing or renting a property in the form of a contract and then flees, to prove that they have fled to appropriate property or not is still a problem in many cases. practical application. Therefore, there have been many different views, with the view that it is only necessary to determine the circumstances of someone when receiving property in the form of a contract and then absconding, not returning the property to the owner. The legal owner or manager is a sufficient basis to conclude that such person is guilty of abusing trust to appropriate property, regardless of the purpose of their escape. In fact, it has been proved that not all cases of fleeing have a sense of appropriation of property.
This is a problem in the application of the law, but there are still no specific instructions to determine this circumstance. But if the Investigation Agency receives a complaint from the lender, it is possible that the borrower will be summoned to work or issue an arrest warrant.
Therefore, in civil transactions related to borrowing, borrowing or renting large assets, if unfortunately, you are in a situation of inability to repay the debt, then you should find a way to solve the case with the lender in accordance with the law, not find a way to escape, avoid getting yourself entangled in the legal cycle.