Resolution 01/2021/NQ-HDTP application of Article 201 of the Penal Code and trial of criminal case on usury in civil transactions

RESOLUTION

Guiding the application of Article 201 of the Penal Code and the adjudication of criminal cases on usury in civil transactions^[1]

THE JUDICIAL COUNCIL OF THE SUPREME PEOPLE’S COURT

Pursuant to the November 24, 2014 Law on Organization of People’s Courts;

In order to properly and uniformly apply Article 201 of Penal Code No. 100/2015/QH13, which was amended and supplemented under Law No. 12/2017/QH14, and proper adjudication of criminal cases on usury in civil transactions;

After obtaining opinions of the Procurator General of the Supreme People’s Procuracy and the Minister of Justice,

RESOLVES:

Article 1. Scope of regulation

This Resolution guides the application of Article 201 of Penal Code No. 100/2015/QH13, which was amended and supplemented under Law No. 12/2017/QH14 (below referred to as the Penal Code for short), and the adjudication of criminal cases on usury in civil transactions.

Article 2. Terminology

1. “Usury” means a case where a lender provides a loan to a borrower at an interest rate at least five times the highest interest rate provided in Clause 1, Article 468 of the Civil Code.

In case loans are provided in other assets (other than money), the value of such assets shall be monetized at the time of transfer of loan assets.

2. “Illicit earning” means an interest amount exceeding the highest lending interest rate provided in the Civil Code and other amounts illegally collected from a borrower.

In case an illicit earning is assets (other than money), the value of such assets shall be monetized at the time of transfer of loan assets.

Article 3. Principles of handling offenders committing usury in civil transactions

1. Adhering to basic principles of the penal and criminal procedure laws.

2. Considering strict imposition of pecuniary penalties as the principal penalty to offenders. For crimes that are committed in a professional manner, by criminal gang or syndicate members, imprisonment penalty shall be considered to be imposed as the principal one.

3. In case the applicable principal penalty is not a pecuniary one, an additional penalty being a pecuniary penalty shall be considered to be imposed.

Article 4. Determination of procedural capacity of borrowers

In criminal cases where lenders are examined for penal liability for usury in civil transactions under Article 201 of the Penal Code, borrowers shall participate in proceedings in the capacity as persons with related interests and obligations.

Article 5. Handling of objects and money amounts directly related to crimes

1. Confiscation into state funds of:

a/ Money amounts and other assets used by offenders to provide loans;

b/ Interest amounts equal to the highest interest rate provided in the Civil Code, which have been collected from borrowers by offenders.

c/ Money amounts and other assets additionally earned by offenders from the use of interest amounts and other unlawful earnings.

2. Return to borrowers of illicit earning amounts actually collected by offenders; in case borrowers have used loans for illegal purposes (such as gambling, illegal drug trading, swindling for appropriation of assets, etc.), illicit earning amounts shall be confiscated into the state funds.

Article 6. Determination of illicit earning amounts for examination of penal liability

1. In case the usury has gone beyond the agreed loan term, illicit earning amounts for determination of penal liability shall include interest amounts and other unlawful charges payable by borrowers to lenders after subtracting interest amounts equal to the highest interest rate provided in the Civil Code throughout the loan term.

2. In case the usury is detected though it has not yet expired according to the agreed loan term, illicit earning amounts for determination of penal liability shall include interest amounts and other unlawful charges payable by borrowers to lenders after subtracting interest amounts equal to the highest interest rate provided in the Civil Code up to the time it is detected and prevented by competent bodies.

In case borrowers have paid interest amounts ahead of time and other unlawful charges, illicit earning amounts for determination of penal liability shall include interest amounts and other unlawful charges actually paid by borrows to lenders after subtracting interest amounts equal to the highest interest rate provided in the Civil Code.

Article 7. Examination of penal liability in a number of specific cases

1. In case a person commits the act of usury many times with an illicit earning amount for each time of crime commission being at least VND 30,000,000 and has not yet been examined for penal liability for each time of crime commission while the statute of limitations for examination of penal liability has not expired, in addition to the imposition of penalty(ies) for the total illicit earning amount, he/she may also be subject to the penal liability-aggravating circumstance of “committing a crime twice or more” as specified at Point g, Clause 1, Article 52 of the Penal Code.

2. In case a person commits the act of usury many times with an illicit earning amount for each time being under VND 30,000,000 but with a total illicit earning amount reaching at least VND 30,000,000 and these acts have not yet been administratively sanctioned while the statute of limitations for sanctioning of administrative violations has not yet expired, he/she shall be examined for penal liability and imposed penalties for the total illicit earning amount of all times of commission of usury without being subject to the penal liability-aggravating circumstance of “committing a crime twice or more” as defined at Point g, Clause 1, Article 52 of the Penal Code.

3. In case a person commits the act of usury many times, including one time when he/she earns an illicit earning amount of at least VND 30,000,000, and the statute of limitations for examination of penal liability for this act has not yet expired, while the illicit earning amount from each of other times of usury is under VND 30,000,000 and these acts have not yet been administratively sanctioned and the statute of limitations for sanctioning of administrative violations has not yet expired, he/she shall be examined for penal liability and imposed penalties for the total illicit earning amount of all times of commission of usury without being subject to the penal liability-aggravating circumstance of “committing a crime twice or more” as defined at Point g, Clause 1, Article 52 of the Penal Code.

4. In case an usurer commits different acts related to debt collection (such as using force, threatening to use force, spiritually jeopardizing, causing injuries or harms to the health or committing other acts to acquire assets, etc.), he/she shall be criminally handled for such criminal acts if these acts fully constitute crimes.

5. In case a person commits usury for the purpose of earning an illicit earning amount of at least VND 30,000,000 but, for force majeure reasons, cannot collect such amount or has collected an illicit earning amount of under VND 30,000,000, he/she shall be examined for penal liability and imposed penalties for the expected total illicit earning amount. The determination of illicit earning amounts must comply with the guidance in Article 6 of this Resolution. Upon deciding penalties, the court shall apply Article 15 and Clause 3, Article 57 of the Penal Code on uncompleted crimes.

Article 8. Effect

1. This Resolution was adopted on September 30, 2021, by the Judicial Council of the Supreme People’s Court and takes effect on December 24, 2021.

2. In case offenders are tried before the effective date of this Resolution in accordance with previous regulations and guidance, and judgments against them are due to become legally effective, this Resolution will not be based on to make protests according to cassation or re-opening procedures.-

On behalf of the Judicial Council
Chief Justice of the Supreme People’s Court
NGUYEN HOA BINH