Are bail and guarantee in Vietnam different or the same?
Are bail and guarantee in Vietnam different or the same?
According to Clause 1 Article 335 of the Civil Code 2015, guarantee in Vietnam is defined as follows:
Guarantee means an undertaking made by a third person (hereinafter referred to as the guarantor) to an obligee (hereinafter referred to as the creditor) to perform an obligation on behalf of an obligor (hereinafter referred to as the principal debtor) if the obligation falls due and the principal fails to perform or performs incorrectly the obligation.
Guarantee is a matter regulated by the Civil Code 2015. The guarantee relationship involves three parties: the Guarantor, the creditor, and the principal debtor. In this relationship, the guarantor commits to the creditor to fulfill the obligation on behalf of the principal debtor if the latter fails to perform or improperly performs the obligation upon its due time.
According to Clause 1 Article 121 of the Criminal Procedure Code 2015, bail is defined as follows:
Bail 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.
Bail is a measure in criminal procedure instead of detention. The Investigation authorities, procuracies and Courts have the power to decide to approve or refuse bail.
Thus, bail and guarantee are two completely different concepts. Bail is one of the measures taken in criminal procedure. Guarantee is one of the measures ensuring the fulfillment of obligations in civil matters.
Is a guarantor in Vietnam required to guarantee an obligation in whole?
According to Clause 1 Article 366 of the Civil Code 2015, the scope of guarantees is as follows:
1. A guarantor may guarantee an obligation in whole or in part on behalf of a principal debtor
Thus, the guarantor has the right to guarantee an obligation in whole or in part on behalf of a principal debtor. It is not mandatory to cover the entire obligation.
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