26/07/2022 08:51

When the statute of limitations expires, can the lender sue to get the money back in Vietnam?

When the statute of limitations expires, can the lender sue to get the money back in Vietnam?

The statute of limitations for initiating a civil case is the time limit during which the subject is entitled to initiate a lawsuit to request the Court to settle the civil case to protect the infringed lawful rights and interests; if such time limit expires, the right to initiate lawsuits shall be lost, unless otherwise provided for by the law of Vietnam.

Here is a typical case of "unless otherwise provided by law" - when the statute of limitations has expired but you still have the right to request a lawsuit. Specifically:

At Judgment 149/2017/DS-PT dated September 27, 2017 of the People's Court of Can Tho city, the public appellate hearing of the dispute over the property loan contract between plaintiff Ms. Tran Tuyet M and defendant Mr. Tran Duy T.

"On March 11, 2009, Mrs. M had a loan of 40,000,000 VND from M Bank, the interest rate was 0.85%/month, and the loan term was 36 months, about half a month later, Ms. Mai gave it to Mr. Tran Duy. T borrows back VND 10,000,000 to buy a laptop, Mr. T is obliged to pay interest and monthly capital payment to Ms. M according to the corresponding principal amount along with the loan interest at the Bank for Ms. M to return to the Bank. However, after the bank payment expired, Mr. T could only pay an interest of VND 2,635,000 (instead of having to pay VND 10,000,000 x 0.85%/month x 36 months = 3,060. 000 dong), the remaining amount of profit Ms. M gives Mr. T.

The above loan did not make any documents, Mrs. M recorded it by phone, showing that Mr. T admitted to borrowing Ms. M 10,000,000 VND, but because Mrs. M's phone was broken, she couldn't provide it to the Court.

On January 21, 2017 at the Reconciliation Board of Area T, Ward T, District O, Can Tho City, Mr. T only admitted to borrowing Mrs. M 5,000,000 VND.

Ms. M asked Mr. Tran Duy T to pay the amount of VND 10,000,000 without asking for interest."

Based on the documents and evidence in the case, the testimony of the witness, the People's Court of Can Tho city determined that Mr. T had borrowed VND 10,000,000 from Mrs. M and forced Mr. Tran Duy T to pay Ms. Tran Tuyet Mai an amount of VND 10,000,000.

In particular, regarding the statute of limitations for the case, the People's Court of Can Tho city made the following observations: Because in the minutes of conciliation in area T, ward T, district O on January 21, 2017, Mr. T admitted that he borrowed VND 5,000,000 from Mrs. M. Compared with Article 157 of the 2015 Civil Code, this is the case where the statute of limitations for initiating a lawsuit can be restarted. Therefore, the statute of limitations for initiating a lawsuit is calculated from January 22, 2017, until the date that Ms. M filed a lawsuit on March 13, 2017, less than 3 years have passed, and the statute of limitations still exists.

Article 157. Re-commencement of prescriptive period for initiating legal action for civil cases

1. The prescriptive period for initiating legal action for a civil case shall re-commence in any of the following cases:

a) The obligor has acknowledged part or all of its obligations to the plaintiff;

b) The obligor has acknowledged or fulfilled part of its obligations to the plaintiff;

c) The parties have become reconciled.

2. The prescriptive period for initiating legal action for a civil case shall re-commence from the date following the date on which the event provided in clause 1 of this Article occurs.

According to the law, the statute of limitations for filing a lawsuit for a dispute to reclaim loan money in particular and loan assets in general will be 3 years.

Although the statute of limitations for initiating a lawsuit has expired, the obligor Mr. T has admitted a part of his/her obligations towards Ms. M, belongs to the case specified at Point a, Clause 1, Article 157 on restarting the statute of limitations for initiating lawsuits, so the court still accepts this case.

Therefore, if the statute of limitations falls into one of the cases specified in Article 157 of the 2015 Civil Code of Vietnam, even though the statute of limitations has expired but the statute of limitations for initiating a lawsuit has expired, the lender still has the right to sue in a competent court to reclaim the loaned property.

In addition, with respect to the statute of limitations for initiating a lawsuit, it should be noted that there are a number of cases where the statute of limitations does not apply. The statute of limitations does not apply in the following cases:

- Request to protect personal rights not attached to the property.

- Request for protection of property rights, unless otherwise specified.

- Disputes over land use rights according to the provisions of the Land Law.

- Other cases prescribed by law.

Thu Linh
134


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