The Judicial Council of the Supreme People's Court has just issued Resolution 01/2021/NQ-HDTP dated December 20, 2021 guiding the application of Article 201 of the Penal Code and the trial of criminal cases on the crime of loan sharking. in civil transactions.
Article table of contents
How are loan sharks criminally handled? (Illustration)
In Article 201 of the Penal Code , the crime of lending heavy interest in civil transactions is as follows:
1. Any person who, in a civil transaction, lends at an interest rate 5 times higher than the highest interest rate prescribed in the Civil Code, earns an illegal profit of between VND 30,000,000 and under VND 100,000,000 or has been prosecuted If you have been administratively sanctioned for this act or have already been convicted of this crime, have not yet had your criminal record cleared but continue to commit it, you will be subject to a fine of between VND 50,000,000 and 200,000,000 or a non-custodial reform to 03 years.
2. Committing the crime of earning illegal profits of VND 100,000,000 or more, the offenders shall be subject to a fine of between VND 200,000,000 and 1,000,000,000 or a prison term of between 6 months and 3 years.
3. The offenders may also be subject to a fine of between VND 30,000,000 and 100,000,000, a ban from holding certain posts, practicing certain professions or doing certain jobs for one to five years.
Accordingly, the criminal prosecution of offenders of lending heavy interest in civil transactions is prescribed as follows:
(1) In case of committing many times the act of lending heavy interest, but the illicit profit from each crime is VND 30,000,000 or more , if each crime has not been prosecuted for penal liability and the statute of limitations for criminal prosecution has not expired, then:
- In addition to being subject to a penalty frame corresponding to the total amount of illicit profits;
- They are also subject to the aggravating circumstances of penal liability "committing the crime twice or more" specified at Point g, Clause 1, Article 52 of the Penal Code .
(2) In case the person commits the act of lending heavy interest many times but the illegal profits are all less than VND 30,000,000 but the total amount of illicit profit is VND 30,000,000 or more and these acts have not been When being sanctioned for an administrative violation, the statute of limitations for sanctioning an administrative violation has not yet expired, then:
- Being examined for penal liability with a penalty frame corresponding to the total amount of illicit profits from times of high interest loans;
- Do not apply the aggravating circumstances of penal liability "committing the crime twice or more" specified at Point g, Clause 1, Article 52 of the Penal Code .
(3) In case a person performs the act of lending heavy interest many times, including one time lending money with high interest, and earns an illegal profit of VND 30,000,000 or more and this act of lending heavy interest has not expired. Criminal prosecution; and other acts of lending heavy interest for illegal profits of less than VND 30,000,000 , these acts have not been administratively sanctioned and the statute of limitations for sanctioning administrative violations has not expired, then:
- Being examined for penal liability with a penalty frame corresponding to the total amount of illicit profits from times of high interest loans;
- Do not apply the aggravating circumstances of penal liability "committing the crime twice or more" specified at Point g, Clause 1, Article 52 of the Penal Code .
(4) In case the lender of high interest commits many different acts related to debt collection (such as: using force, threatening to use force, mentally threatening, causing injury, causing harm to health, etc.) or commit other acts to obtain property,...) then, depending on the case, they will also be penalized for the corresponding crime, if there are enough elements to constitute the crime.
(5) In case the lender of heavy interest aims to gain illicit profits of VND 30,000,000 or more , but due to unintended reasons, the lender has not obtained any illicit profits or has obtained an illegal profit of less than VND 30,000,000 , then:
- Being examined for penal liability according to the penalty frame corresponding to the total amount of illicit profits that they aim to achieve.
- The determination of the amount of illicit profits shall be made according to the guidance in Article 6 of Resolution 01/2021/NQ-HDTP .
- When deciding penalties, the Court applies Articles 15 and 3, Article 57 of the Penal Code on unsatisfactory crimes.
| Determine the amount of illicit profits to handle criminal liability 1. In case the loan term has expired as agreed, the amount of illicit profit used to determine criminal liability includes interest and other illegal revenues that the borrower must pay to the lender. loan after deducting the interest corresponding to the highest interest rate as prescribed by the Civil Code for the whole loan term. 2. In case the loan of heavy interest has not yet expired the loan term as agreed upon but is discovered, the amount of illicit profit for determining criminal liability includes interest and other illegal revenues that the borrower has to pay. pay the lender after deducting the interest corresponding to the highest interest rate as prescribed by the Civil Code up to the time of detection and prevention by the competent authority. Where the borrower has paid interest and other illegal revenues, the amount of illicit profits used to determine criminal liability includes interest and other illegal revenues that the borrower has actually received. pay the lender after deducting the interest corresponding to the highest interest rate as prescribed by the Civil Code . |
Resolution 01/2021/NQ-HDTP takes effect from December 24, 2021.
Offenders who have been tried before December 24, 2021 in accordance with previous regulations and guidelines and legally effective judgments, shall not base their protests on this Resolution to protest according to cassation procedures. , retrial.
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