07/10/2022 15:14

Vietnam: Differences between guarantee and bail

Vietnam: Differences between guarantee and bail

I would like to know what the differences are between a guarantee and bail. Thank you! " Minh Tuan (Tien Giang, Vietnam)

Thank you for your question. Lawnet would like to answer as follows:

Differences between guarantee and bail

Criteria

Guarantee

Bail

Legal basis

Articles 335 to 343 of the Civil Code 2015

Article 121 of Criminal Procedure Code 2015

Scope

In civil cases

In criminal cases

Definition

Guarantee means an undertaking made by a third person to an obligee  to perform an obligation on behalf of an obligor if the obligation falls due and the principal fails to perform or performs incorrectly the obligation.

Surety is a preventive measure in lieu of detention. Investigation authorities, procuracies and Courts shall consider the nature and severity of acts against the society and suspects’ or defendants’ personal records and decide to approve or refuse bail.

Form

In document

In document

Nature

 

Guarantee is a measure of security used in civil legal relations

 Bail is a deterrent measure used in criminal proceedings.

Subject

Guarantor, creditor

Persons on bailm, persons who bail

Legal consequences

The guarantor shall only be obliged to perform the obligation if the principal debtor is incapable of performing it.

- If suspects and defendants violate duties guaranteed, they shall be put in detention.

- Organizations and individuals undertaking bail but failing to make suspects or defendants conform to duties guaranteed shall incur fines subject to the nature and severity of violations as per the laws.

Some judgments regarding guarantee

1. Judgment on guarantee contract dispute No. 112/2022/DS-PT

- Level of trial: Appellate.

- Judicial body: People's Court of Ca Mau province.

- Quote from the content: "Mrs Nguyen Ngoc T said that when she lent money to Ms. Ta Kim N, she was guaranteed by Ms. Le Thi M, so she lent it to Ms. Ta Kim N. To prove her testimony, Ms. Nguyen Ngoc T provided 02 debt receipts signed by Ms. Le Thi M as guarantor along with 02 audio recordings (symbols 000.amr and 001.amr) of the conversation between Mr. Do Quang C (Mrs. Nguyen Ngoc T's husband) and Ms. Le Thi M. Ms. Le Thi M admitted to signing the 02 debt receipts that Ms. Nguyen Ngoc T had declared. However, she signed as a witness, not a guarantor. Ms. Le Thi M provided Ms. Ta Kim N's report stating that she was only a witness to the loan;"

2. Judgment No. 400/2020/DS-PT dated September 30, 2020 on disputes over guarantee contracts, mortgage of loan guarantee assets, recognition of contracts for transfer of residential land use rights

- Level of trial: Appellate.

- Judicial body: Hanoi People's Court.

- Quoting the content: "According to the Loan Guarantee Mortgage Contract and the Loan Guarantee Mortgage Contract Appendix, Mr. PMH2 and Ms. Nguyen Thi Thi Thi Ly commit to guarantee the loan for CTXDHN7 up to a maximum of 1,900,000,000 copper. The mortgaged property, the guarantee is the entire house ownership, the land use right of 210m2 in the land plot No. 113, map sheet No. 34, Group 1, Duong block, YV5, GL6 town, Hanoi, which has been recognized by the Committee. People of GL6 district, issued Certificate No. 10119053207, dated 30/11/2004, named after Mr. Pham Minh Hoa, born in 1967 and Ms. Nguyen Thi Thi Ly, born in 1970. On the land there is a grade 4 house with an area of ​​about 12m2. "

Some judgments regarding bail

1. Judgment on gambling and gambling organization No. 240/2022/HS-PT

- Judgment level: Appellate court.

- Judicial agency: People's Court of Dong Nai province.

- Quoting the content: "Regarding preventive measures: Pursuant to Point d, Clause 1, Article 125 of the Criminal Procedure Code, cancel the following preventive measures of the People's Court of City B: Decision on being ban from leaving the place of residence No: 56/2022/QDCDKNCT dated January 20, 2022, for defendant Le Thi Ngoc H. Guarantee decision number: 58/2022/QDST-HS dated January 20, 2022, for defendant Huynh Tan Nguyen Tr. Guarantee decision number: 60/2022/QDST-HS dated January 20, 2022, for defendant Huynh Thi Kieu O."

2. Judgment No. 10/2019/HS-ST dated March 21, 2019 for fraud to appropriate property

- Trial level: First instance.

- Judicial agency: People's Court of DX district, DX province.

- Quote from the content: "The defendant was temporarily detained from May 14, 2018 to October 10, 2018 with the blocking measure "Giving bail""

 

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Nguyen Sang
33


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