07/10/2022 08:51

How to resolve disputes when appropriating assets in tontine in Vietnam?

How to resolve disputes when appropriating assets in tontine in Vietnam?

Tontine - a form of customary property transaction, is the association between the participating members on the basis of mutual trust. However, in reality, it has been changed and become an illegal form of credit, even a fraud to appropriate property.

Typically, Judgment 49/2018/DS-ST dated October 9, 2018 on the dispute over the contribution contract:  

Due to her acquaintance, Ms. Nguyen Thi My L participated in 05 tontines owned by Ms. Bui Thi T. Although Ms. T owns the tontine, she does not make a list of the members of each tontine so she does not give the list of members to Ms. L as well as other members, but the two sides keep their own records. During the process of police investigation of the criminal case by T Provincial Police, Ms. T also admitted that she still owes her a total of 38,535,000 VND. In the third lunar month of March 2017, Ms. T broke up and ran away, about a month later, when Ms. T returned home, she was detained by the police of T province and prosecuted for criminal prosecution.

Regarding the dispute relationship: Ms. T and Ms. L both admitted to having a transaction on the contribution contract with each other. After being broken, Ms. T did not return the contribution to Ms. L as a breach of payment obligation, so Ms. L filed a lawsuit. Therefore, determining that this is a dispute over a contribution contract is specified in Article 479 of the 2005 Civil Code.

Tontine is a form of capital mobilization in Vietnamese folklore and is usually performed by women. This is the opposite form of installment payments. Previously, tontine was not recognized and protected by Vietnamese law, but since 2006 there has been Decree 144/2006/ND-CP on tontine

At the same time, playing hui is an activity specified in Article 479 of the 2005 Civil Code as follows:

Article 479. Tontine

1. Tontine is a form of property transaction, which is carried out according to practices and on the basis of agreement of a group of people rallying together to determine the number of people, time, money amounts or other property, mode of contributing and receiving annuities and the rights and obligations of members.

2. The form of tontine for the purpose of mutual assistance among people shall comply with the provisions of law.

3. It is strictly prohibited to organize tontines in the form of usury.

According to Article 31 of Decree 144/2006/ND-CP on tontine, dispute settlement is as follows:

"Disputes that arise over or from the tontine shall be settled through negotiations, conciliation or, at request of one or many tontiners, be settled at a court in accordance with the law on civil procedures."

According to the above provisions, if the current settlement fails but the owner refuses to pay the above amount, the parties can first negotiate and reconcile with each other, if not, they can file a lawsuit to the Court to settle the above dispute, however, they need to provide evidence related to the existence of tontine.

In addition, in case the owner has an act of appropriating property, you can make a criminal denunciation and send it to the Public Security Agency for settlement. According to the provisions of Article 175 of the Criminal Code 2015, the crime of abusing trust to appropriate property:

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;

3. This offence committed in any of the following circumstances carries a penalty of 05 - 12 years' imprisonment:

a) The property obtained is assessed at from VND 200,000,000 to under VND 500,000,000;

b) The offence has a negative impact on social safety, order and security.

4. If the property obtained is assessed at from ≥ VND 500,000,000, the offender shall face a penalty of 12 - 20 years' imprisonment.

5. The offender might also be liable to a fine of from VND 10,000,000 to VND 100,000,000, be prohibited from holding certain positions or doing certain works for 01 - 05 years or have all or part of his/her property confiscated.

Therefore, Pursuant to the above provisions, if the owner commits acts of fleeing, deceiving to appropriate property, or using such money for illegal purposes, leading to inability to pay, it may be must be criminally responsible for the crime of abusing trust to appropriate other people's property. However, with the current situation, the parties should negotiate a conciliation to resolve, if not, then request the Court to settle according to the civil relationship. 

In conclusion, you should only play tontine when it is clear and safe and within the framework of the law to avoid or at least minimize the risks and unfortunate consequences that may occur.


Kim Hue

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