WHAT SHOULD YOU DO WHEN A BORROWER INTENTIONALLY DOESN'T PAY THE DEBT

Personal consulting

Ms. Quyen in Cam Le District (Da Nang City), asked: Mr. Hung, in Hai Chau District (Da Nang City) is my child's English tutor and is currently working at a foreign language center in Da Nang. Taking advantage of this acquaintance, around September 2021, he asked me to borrow 250 million to urgently solve his family's problems. He promised to return the money about 1 to 2 months after the date of borrowing (there was a message via zalo). Because of my closeness and trust in Mr. Hung as a teacher, on October 1, 2021, I lent Mr. Hung 250 million VND, without interest, for a period of 2 months (with loan document). However, when the payment was due, Mr. Hung found every way to avoid and refused to pay even though I asked him many times. Up to now, it has been overdue for more than a year, but Mr. Hung deliberately does not pay me even though he has a house on the street and goes to work by car. What should I do to get my money back?

*Lawyer Dang Van Vuong, Deputy Director of Phong & Partner Law Firm replies:

According to the information provided by Ms. Quyen, the borrowing of money by Mr Hung from you was an asset loan agreement. By the debt repayment deadline (December 1, 2021), Mr. Hung is obliged to repay the debt according to the loan note. In case Mr. Hung does not pay on time as agreed, Ms. Quyen has the right to request Mr. Hung to pay the principal and interest of the principal amount of 250,000,000 VND at an interest rate of 10%/year from the time the debt is due until the debt is repaid. Specifically, this content is stipulated in the 2015 Civil Code as follows:
"Article 463. Property loan contract
A property loan contract is an agreement between the parties, whereby the lender delivers the property to the borrower; When the repayment is due, the borrower must return to the lender assets of the same type in the correct quantity and quality and must only pay interest if agreed upon or prescribed by law.

Article 466. Borrower's debt repayment obligation
1. The party who borrows assets in cash must pay in full when due; If the property is an object, the object must be returned in the same quantity and quality, unless otherwise agreed upon.

Article 468. Interest rate
1. Loan interest rate is agreed upon by the parties.
In case the parties have an agreement on interest rate, the agreed interest rate must not exceed 20%/year of the loan amount, unless other relevant laws stipulate otherwise. Based on the actual situation and the Government's proposal, the National Assembly Standing Committee decides to adjust the above interest rate and reports to the National Assembly at the nearest session.
In case the agreed interest rate exceeds the limit interest rate specified in this Clause, the excess interest rate will not be effective.
2. In case the parties have an agreement on interest payment, but the interest rate is not clearly determined and there is a dispute about the interest rate, the interest rate is determined at 50% of the limited interest rate specified in Clause 1 of this Article at the time of repayment."

In addition, although this is a civil agreement, in case Mr. Hung has the conditions and ability to repay the debt but he deliberately does not pay in the payment due, that is one of the signs of the crime of abuse of trust to appropriate property specifically defined in Point a, Clause 1, Article 175 of the Penal Code 2015, amended and supplemented in 2017:
"1. Any person who commits one of the following acts to appropriate another person's property worthed from 4,000,000 VND to under 50,000,000 VND or under 4,000,000 VND but has been sanctioned for an administrative violation of acts of appropriating property or have been convicted of this crime or of one of the crimes specified in Articles 168, 169, 170, 171, 172, 173, 174 and 290 of this Code, whose criminal record has not been expunged but also violates or the property is the main means of making a living for the victim and his/her family, the penalty shall be non-custodial reform for up to 03 years or imprisonment from 06 months to 03 years:
a) Borrowing, renting property from another person or receiving property from another person in the form of a contract and then using deceitful tricks or fleeing to appropriate that property or deliberately do not pay the property on time although being ability to pay."

Based on the information provided by Ms. Quyen and the legal provisions mentioned above, to ensure her rights (retrieve the loaned money), Ms. Quyen can take the following steps:
Step 1: Meet Mr. Hung (or call or text depending on actual conditions) to discuss with Mr. Hung so that Mr. Hung understand you will request the competent authority to handle it accordingly Laws if he continues to refuse to repay the debt. At that time, he will be at risk of being prosecuted for criminal liability, affecting his reputation and honor. If Mr. Hung still does not cooperate, take the next steps.
Step 2: Collect and consolidate documents and evidence proving that Mr. Hung borrowed money (loan papers, transfer information if any) and evidence proving that Mr. Hung is eligible and able to repay the debt (pictures of houses, vehicles along with documents proving ownership).
Step 3: Make a criminal complaint/denouncement and send it to the district police investigation agency where Mr. Hung lives/works to request the Investigation Agency to resolve.
Step 4: File a lawsuit and send it to the district court where Mr. Hung lives to request the court to force Mr. Hung to repay the principal amount borrowed and the corresponding interest in the case the Police Investigation Agency determines that the case is only a civil relationship, with no criminal elements.
Step 5: Request the Enforcement Agency to enforce the judgment in case there is a legally effective judgment but Mr. Hung does not voluntarily execute it.

The article was published in Da Nang Police Newspaper on January 17, 2023.