When lending and borrowing activities take place, it is also when the two parties have established a property loan contract since the form of the contract can be in writing, verbally, or in specific acts.
Article 463 of Vietnam's Civil Code stipulates contracts for loan of property as follows:
Contract for the loan of property means an agreement between parties whereby a lender delivers property to a borrower. When the loan falls due, the borrower must repay the lender property of the same type in accordance with the correct quantity and quality, and must pay interest if so agreed or so provided by law.
The borrower is obliged to repay the debt, as specified in Article 466 of the Civil Code:
"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."
Thus, when the debt is due, the borrower must fully repay the borrowed assets with interest (if the loan is profitable). If the borrower does not pay by the due date, there are two main cases as follows:
- Scenario 1: Borrower does not pay due to inability to pay without sign of absconding or deceitful tricks to avoid debt. This case will be handled according to civil law. The lender can initiate a lawsuit in court to resolve the dispute.
- Scenario 2: If the debtor shows signs of absconding or has fraudulent tricks to appropriate property, he/she may be prosecuted for criminal liability for the crime of "abusing trust to appropriate property.
Article 175 of the Criminal Code 2015 stipulates this crime as follows:
"1. The boundaries between adjoining immoveable properties shall be determined in accordance with the agreement of the owners or in accordance with a decision of the competent authority.
The boundaries may also be determined in accordance with customary practice or according to boundaries which have existed for thirty (30) or more years without dispute.
The land user may not encroach upon the boundary or change the boundary markers, including boundaries being canals, irrigation ditches, trenches, gutters or boundaries of rice fields. Each entity must respect and maintain the common boundaries.
Regarding the aggravation of criminal liability:
Imprisonment from 02 years to 07 years for the following cases: committed by an organized group; committed in a professional manner; appropriate property valued between VND 50,000,000 and under VND 200,000,000; abusing positions, powers or taking advantage of the name of agencies or organizations; use cunning tricks; dangerous recidivism.
In the following cases, imprisonment of 5 to 12 years will be imposed: appropriating property valued between VND 200,000,000 and VND 500,000,000; having negative impact on social safety, order and security
A prison sentence of 12 to 20 years for appropriating property worth VND 500,000,000 or more.
In addition, the offenders may also be subject to additional penalties: a fine of between VND 10,000,000 and 100,000,000; ban from holding certain positions, practicing certain professions, or doing certain jobs from 1 year to 05 years; confiscation of all or part of the property
The Judgement on the crime of abusing trust to appropriate property 273/2021/HSST:
Le Ba C came to visit Mr. H's house. Then C asked to borrow Mr. T's motorbike, saying that he had to go to work for a while and come back to pay. Mr. T agreed and gave C the key to the motorbike. Then C took the car and went around Thanh Hoa to cool off. At that time, C suddenly had the intention of pledging the car to spend money. Therefore, C brought the car to the gate area of the old Hong Duc University, in D ward, H city, pledging the car to a young man (name, age, and address unknown) for the amount of 10,000,000 VND. Then he called a taxi to go out and spend all the money above. When Mr. T waited for a long time but did not see C bringing the car back, he called C. However, C's phone could not be contacted. Around 6 pm on the same day, Mr. T asked Mr. H to drive him to C's house to find him, but he could not find C, and C's family did not know where C was going. Up to now, C has not returned the vehicle to Mr. T.
The People's Court of Thanh Hoa city, Thanh Hoa province, said that defendant C took advantage of the relationship of friends and trust to appropriate other people's property for the purpose of taking money for personal consumption. The defendant has additional aggravating circumstances of having 01 previous conviction that has not been expunged, so he is considered to be committing recidivism as specified at Point h, Clause 1, Article 52 of the Criminal Code.
Therefore, the Court decided: Declare defendant Le Ba C guilty of "abusing trust to appropriate property", punishing the defendant for 27 (twenty-seven) months in prison.
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