THE COUNCIL OF
JUSTICES
THE SUPREME PEOPLE’S COURT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No.:
01/2019/NQ-HDTP
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Hanoi, January
11, 2019
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RESOLUTION
ON
APPLICATION OF REGULATIONS ON INTERESTS, INTEREST RATES AND PENALTIES
THE COUNCIL OF JUSTICES OF THE SUPREME PEOPLE’S COURT
Pursuant to the Law on Organization of People’s
Courts dated November 24, 2014;
For the purposes of consistent and proper application
of law regulations on interests, interest rates and penalties;
After getting opinions from the Director of the
People’s Supreme Procuracy and the Minister of Justice;
HEREBY RESOLVES:
Article 1. Scope
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Property loan agreements governed by this
Resolution includes agreements for loan of property which is a sum of money
made between credit institutions and borrowers (hereinafter referred to as
“credit agreements”) and agreements for loan of property which is a sum of
money entered into between individuals and legal entities other than credit
institutions (hereinafter referred to as “property loan agreements other than
credit agreements”).
Article 2. Application of
regulations on interests and interest rates in property loan agreements other
than credit agreements
1. Regulations on interests
and interest rates shall be applied to property loan agreements which are not
credit agreements and concluded before January 01, 2017 (the effective date of
the 2015 Civil Code) as follows:
a) A finished agreement refers to an agreement of
which the parties have exercised and fulfilled their rights and obligations as
agreed and other rights and obligations arising from the agreement as regulated
by laws.
Disputes over an agreement finished before January
01, 2017 shall be settled in accordance with the 2005 Civil Code, the
Resolution No. 45/2005/QH11 dated June 14, 2005 of the National Assembly and
legislative documents providing guidelines for implementation of 2005 Civil
Code;
Example 1: On December 20, 2015, Mr. A entered
into a loan agreement to lend an amount of VND 10,000,000,000 to Mrs. B with
the loan term of 01 year, agreed interest rate of 18%/year; this loan agreement
is effective and Mrs. B has fully repaid principal and interest as agreed. On
February 20, 2018, Mrs. B has taken legal proceedings against Mr. A for refund
of interests because the employed interest rate exceeds 150% of the basic
interest rate according to Decision No. 2868/QD-NHNN dated November 29, 2010 of
the State Bank of Vietnam (the prescribed basic interest rate is 9%/year, so
150% of the basic interest rate is 13.5%/year). In this case, the Court must
apply Article 476 of the 2005 Civil Code to determination of interest rate and
exceeding interest rate.
b) An unperformed agreement refers to an agreement
of which the parties must not yet exercise and fulfill their rights and
obligations as agreed and other rights and obligations arising from the
agreement as regulated by laws.
Disputes over an unperformed agreement in which the
interest and interest rate are conformable with the 2015 Civil Code shall be
settled in accordance with the 2015 Civil Code and legislative documents
providing guidelines for implementation of the 2015 Civil Code; disputes over
an unperformed agreement in which the interest and interest rate are not
conformable with the 2015 Civil Code shall be settled in accordance with the
2005 Civil Code, the Resolution No. 45/2005/QH11 dated June 14, 2005 and
legislative documents providing guidelines for implementation of the 2005 Civil
Code unless the parties reach an agreement on adjustment of the interest and
interest rate in conformity with the 2015 Civil Code for application of this
2015 Civil Code.
c) An agreement in progress refers to an agreement
of which the parties have not yet exercised and fulfilled their rights and
obligations as agreed and other rights and obligations arising from the
agreement as regulated by laws.
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With regard to an agreement in progress in which
the interest and interest rate are conformable with the 2015 Civil Code, the
interest and interest rate shall be determined as follows:
The interest and interest rate before January 01,
2006 shall be determined in accordance with the 1995 Civil Code, the Resolution
dated October 28, 1995 of the National Assembly and legislative documents
providing guidelines for implementation of 1995 Civil Code.
The interest and interest rate from January 01,
2006 to before January 01, 2017 shall be determined in accordance with the 2005
Civil Code, the Resolution No. 45/2005/QH11 dated June 14, 2005 of the National
Assembly and legislative documents providing guidelines for implementation of
2005 Civil Code.
The interest and interest rate on January 01, 2017
afterwards shall be determined in accordance with the 2015 Civil Code and
legislative documents providing guidelines for implementation of 2015 Civil
Code.
Example 2: On January 01, 2003, Mr. A lent an
amount of VND 100,000,000 to Mrs. B (under an indefinite-term loan agreement)
with the agreed interest rate of 18%/year. On January 01, 2018, Mr. A has taken
legal proceedings against Mrs. B for payment of loan principal and interest
according to the loan agreement. In this case, from January 01, 2003 to before
January 01, 2006, the Court shall determine the interest and interest rate in
accordance with Article 473 of the 1995 Civil Code and legislative documents
providing guidelines for implementation of 1995 Civil Code; from January 01,
2006 to before January 01, 2017, the Court shall determine the interest and
interest rate in accordance with Article 476 of the 2005 Civil Code; from
January 01, 2017 to the date of the first-instance trial, the Court shall
settle the case in accordance with Article 468 of the 2015 Civil Code.
2. Disputes over property loan
agreements which are not credit agreements and concluded on January 01, 2017
and afterwards shall be settled in accordance with regulations on interests and
interest rates in the 2015 Civil Code and legislative documents providing
guidelines for implementation of 2015 Civil Code.
3. A property loan agreement
other than credit agreement is considered to have the interest and interest
rate conformable with the 2015 Civil Code as prescribed in Clause 1 of this
Article if it falls into one of the following circumstances:
a) The agreed interest rate does not exceed the
limit on interest rate prescribed in Article 468 of the 2015 Civil Code.
Example 3: On January 20, 2016, Mr. A concluded
an agreement to lend an amount of VND 100,000,000 to Mrs. B with the agreed
interest rate of 18%/year. Because the agreed interest rate of 18%/year does
not exceed the limit on interest rate prescribed in Article 468 of the 2015
Civil Code, this loan agreement is considered to be conformable with the 2015
Civil Code.
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Example 4: On January 20, 2016, Mr. A concluded
an agreement to lend an amount of VND 100,000,000 to Mrs. B with the agreed
interest rate of 18%/year and the interest on unpaid interest amounts charged
at the rate of 0.1%/year. The agreed interest charged on the unpaid interest
amounts is not prescribed in the 1995 Civil Code, the 2005 Civil Code and
legislative documents providing guidelines for implementation of the 1995 Civil
Code and the 2005 Civil Code but is prescribed in the 2015 Civil Code, so the
agreed interest charged on the unpaid interest amounts is considered to be
conformable with the 2015 Civil Code.
c) The interest/ interest rate is regulated in the
2015 Civil Code but such regulations on interest/ interest rate are contrary to
those in laws applicable before the effective date of the 2015 Civil Code.
Example 5: On January 20, 2016, Mr. A concluded
an agreement to lend an amount of VND 100,000,000 to Mrs. B without the
interest charged and with the loan term of 03 years. In case the parties
entered into no agreements on the interest charged on the overdue principal
balance, the interest charged on the unpaid principal balance from the date
after the payment due date (i.e. January 21, 2019) shall be determined in
accordance with the 2015 Civil Code.
Article 3. Determination of
interests and interest rates in property loan agreements which are not credit
agreements and are governed by the 1995 Civil Code
If a property loan agreement which is not a credit
agreement, concluded before January 01, 2006 and is governed by the 1995 Civil
Code as prescribed in Article 2 of this Resolution, at the date of the
first-instance trial, the interest and interest rate under that agreement shall
be determined as follows:
1. If the loan principal under
the signed agreement bears no interest and the borrower fails to make repayment
or makes partial payment of debts on the due date, the borrower shall be
obliged to pay an interest on the overdue principal at the interest rate
applied to term savings deposit accounts announced by the State Bank of Vietnam
at the repayment date for the late payment period provided that the parties
have reached an agreement on payment of interest on overdue principal.
The interest on overdue principal = (the overdue
principal) x (interest rate on term savings deposit announced by the State Bank
of Vietnam at the repayment date) x (late payment period of principal).
2. If the loan principal under
the signed agreement bears interest and the borrower fails to make repayment or
makes partial payment of debts on the due date, the interest rate shall be
determined as follows:
a) The interest on the outstanding principal not
yet due shall be calculated at the agreed interest rate which must not exceed
50% of the interest rate cap applied to corresponding loans announced by the
State Bank of Vietnam at the date of concluding the loan agreement for the loan
period during which the interest has been not yet paid. If the interest rate
agreed upon by the parties is not available, the interest rate on term savings
deposit accounts announced by the State Bank of Vietnam at the debt repayment
date shall apply.
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b) The interest on overdue principal shall be
calculated at the interest rate on term savings deposit accounts announced by
the State Bank of Vietnam at the debt repayment date for the late payment
period of principal.
The interest on overdue principal = (the overdue
principal) x (interest rate on term savings deposit announced by the State Bank
of Vietnam at the debt repayment date) x (late payment period of principal);
3. When determining the
interest/ Interest rate according to Clause 1 and Clause 2 of this Article, the
Court shall not calculate the interest on the unpaid interest amounts.
Article 4. Determination of
interests and interest rates in property loan agreements which are not credit
agreements and are governed by the 2005 Civil Code
If a property loan agreement which is not a credit
agreement, concluded before January 01, 2017 and is governed by the 2005 Civil
Code as prescribed in Article 2 of this Resolution, at the date of the
first-instance trial, the interest and interest rate under that agreement shall
be determined as follows:
1. If the loan principal under
the signed agreement bears no interest and the borrower fails to make repayment
or makes partial payment of debts on the due date, the borrower shall be
obliged to pay an interest on the overdue principal at the basic interest rate
announced by the State Bank of Vietnam at the debt repayment date for the late
payment period provided that the parties have reached an agreement on payment
of interest on overdue principal.
The interest on overdue principal = (the overdue
principal) x (the basic interest rate announced by the State Bank of Vietnam at
the debt repayment date) x (late payment period of principal).
2. If the loan principal under
the signed agreement bears interest and the borrower fails to make repayment or
makes partial payment of debts on the due date, the interest rate shall be
determined as follows:
a) The interest on the outstanding principal not
yet due shall be calculated at the agreed interest rate which must not exceed
150% of the basic interest rate announced by the State Bank of Vietnam at the date
of concluding the loan agreement for the loan period during which the interest
has been not yet paid. If the interest rate agreed upon by the parties is not
available, the basic interest rate announced by the State Bank of Vietnam at
the debt repayment date shall apply.
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b) The interest on overdue principal shall be
calculated at the basic interest rate announced by the State Bank of Vietnam at
the debt repayment date for the late payment period of principal.
The interest on overdue principal = (the overdue
principal) x (the basic interest rate announced by the State Bank of Vietnam at
the debt repayment date) x (late payment period of principal);
3. When determining the
interest/ interest rate according to Clause 1 and Clause 2 of this Article, the
Court shall not calculate the interest on the unpaid interest amounts.
Article 5. Determination of
interests and interest rates in property loan agreements which are not credit
agreements and are governed by the 2015 Civil Code
If a property loan agreement which is not a credit
agreement, concluded on January 01, 2017 or afterwards or concluded before
January 01, 2017 but is governed by the 2015 Civil Code as prescribed in
Article 2 of this Resolution, at the date of the first-instance trial, the
interest and interest rate under that agreement shall be determined as follows:
1. If the loan principal under
the signed agreement bears no interest and the borrower fails to make repayment
or makes partial payment of debts on the due date, at the request of the
lender, the Court shall determine the interest on the overdue principal payable
by the borrower at the interest rate regulated in Clause 2 Article 468 of the
2015 Civil Code on the unpaid principal balance at the debt repayment date for
the late payment period of the principal, unless otherwise agreed or stipulated
by laws.
The interest on overdue principal = (the overdue
principal) x (the interest rate regulated in Clause 2 Article 468 of the 2015
Civil Code applicable at the debt repayment date) x (the late payment period of
the principal);
2. If the loan principal under
the signed agreement bears interest and the borrower fails to make repayment or
makes partial payment of debts on the due date, the interest rate shall be
determined as follows:
a) The interest on the outstanding principal not
yet due shall be calculated at the agreed interest rate which must not exceed
the basic interest rate prescribed in Clause 1 Article 468 of the 2015 Civil
Code at the date of concluding the loan agreement for the loan period during
which the interest has been not yet paid. In case the parties have reached an
agreement on interest payment without a specific interest rate and disputes
arise, the interest rate shall be equal 50% of the limit on interest rate
prescribed in Clause 1 Article 468 of the 2015 Civil Code applicable at the
debt repayment date.
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b) In case of late payment of interest on the
outstanding principal not yet due, the borrower shall also incur the interest
charged on the unpaid interest amount which is calculated at the interest rate
prescribed in Clause 2 Article 468 of the 2015 Civil Code applicable at the
debt repayment date for the late payment period of the interest on outstanding
principal, unless otherwise agreed.
The interest charged on unpaid interest = (the
unpaid interest amount) x (the interest rate prescribed in Clause 2 Article 468
of the 2015 Civil Code applicable at the debt repayment date) x (the late
payment period of the interest on outstanding principal);
c) The interest charged on the overdue principal
shall be equal to 150% of the lending interest rate agreed upon by the parties
and specified in the loan agreement for the late payment period of the overdue
principal, unless otherwise agreed. The interest rate on the overdue principal
agreed upon by the parties shall not exceed 150% of the interest rate
prescribed in Clause 1 Article 468 of the 2015 Civil Code.
The interest on the overdue principal = (the
overdue principal) x (the agreed interest rate or 150% of the lending interest
rate agreed upon by the parties) x (the late payment period of overdue
principal).
Article 6. Determining date of
first-instance trial and late payment period
1. “date of first-instance
trial” prescribed in this Resolution refers to the date on which the Court
issues the Decision on recognition of the agreements between the concerned
parties or the date on which the Court pronounces the sentence at the
first-instance trial or retries the first-instance case.
2. “debt repayment date”
referred to in Article 3, Article 4 and Article 5 of this Resolution is the
date of first-instance trial.
3. “late payment period”
referred to in Article 3, Article 4 and Article 5 of this Resolution is
determined as follows:
a) With regard to an indefinite-term loan
agreement, the late payment period of the principal begins from the date
following the end of the “reasonable time” and ends on the date of
first-instance trial. “reasonable time” is prescribed in Article 474 of the
1995 Civil Code, Article 477 of the 2005 Civil Code and Article 469 of the 2015
Civil Code and decided by the Court in each specific case provided that such
reasonable time shall not be longer than 03 months from the notification date;
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c) The late payment period of the interest charged
on the outstanding principal begins from the date following the date on which
the interest on the outstanding principal must be paid and ends on the date of
first-instance trial, unless otherwise agreed upon by the concerned parties.
Article 7. Application of
regulations on interests and interest rates in credit agreements
1. The interests and interest
rates in credit agreements shall be agreed upon by the parties in accordance
with the Law on credit institutions and legislative documents providing
guidelines for implementation of the Law on credit institutions applicable at
the date of concluding the credit agreement and the interest calculation date.
2. The Court shall apply the
Law on credit institutions and legislative documents providing guidelines for
implementation of the Law on credit institutions to settlement of disputes over
credit agreements, and shall not apply regulations on interest rate limits laid
down in the 2005 Civil Code and the 2015 Civil Code to calculation of interests
and interest rates.
Article 8. Determining
interests and interest rates in credit agreements at date of first-instance
trial
1. At the date of first-instance
trial, the interest/ interest rate in a credit agreement concluded before
January 01, 2017 shall be determined as follows:
a) The interest on the outstanding principal not
yet due shall be calculated at the agreed interest rate which must be
conformable with the Law on credit institutions and legislative documents
providing regulations on interest rates on credit agreements at the date of
concluding the credit agreement and the interest calculation date for the loan
period during which the interest has been not yet paid.
b) The interest on the overdue principal shall be
calculated at the agreed interest rate which must be conformable with the Law
on credit institutions and legislative documents providing regulations on
interest rates on credit agreements at the date of concluding the credit
agreement.
2. At the date of
first-instance trial, the interest/ interest rate in a credit agreement
concluded on January 01, 2017 or afterwards shall be determined as follows:
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b) If a borrower fails to make payment of the
interest on the outstanding principal on the due date as agreed upon in the
credit agreement, the borrower shall pay interest on late payments calculated
at the interest rate which is agreed upon by the credit institution and the
borrower but shall not exceed the interest rate limit regulated by laws for the
late payment period of interest on the outstanding principal not yet due.
3. The late payment period of
the outstanding principal begins from the delinquency date and ends on the date
of first-instance trial, unless otherwise agreed upon by the concerned
parties.
4. The late payment period of
the interest charged on the outstanding principal begins from the date
following the date on which the interest on the outstanding principal must be
paid and ends on the date of first-instance trial, unless otherwise agreed upon
by the concerned parties.
Article 9. Settling agreements
on interest and interest rate which are higher than the ones regulated by laws
If a property loan agreement stipulates an
interest/ interest rate on the overdue principal, and the interest on unpaid
interest amount higher than the ones regulated by laws, the exceeding
interest/interest rate on the overdue principal, and the interest on unpaid
interest amount shall be not effective; the overpaid interests shall be
deducted from the outstanding principal at the interest payment date; the
overpaid interests that remain after deduction of the outstanding principal
shall be refunded to the borrower.
Article 10. Adjustment of
interests and interest rates
In case the parties reaches an agreement on
adjustment of the interest/ lending interest rate, the interest/ lending
interest rate shall be determined according to the parties’ agreement and
legislative documents providing regulations on interests and interest rates
effective at the date of adjustment of the interest/ interest rate.
Article 11. Determining
average interest rate prescribed in Article 306 of the 2005 Commercial Law
In case an agreement is subject to the scope of
Article 306 of the 2005 Commercial Law, when determining the interest on late
payments, the Court shall determine the interest rate on late payments on the
basis of average interest rates on overdue debts announced by at least 03
(three) commercial banks (such as Vietcombank, VietinBank, Agribank, etc.)
whose headquarters, branch or transaction office is located in the same
province or central-affiliated city where the headquarters of the Court in
charge of the case is located at the payment date (the date of first-instance
trial), except otherwise agreed upon by the parties or regulated by laws.
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1. If a property loan
agreement includes provisions on the borrower’s failure to make scheduled debt
payments, the Court shall consider and make decision on the borrower’s failure
to make debt payments on the due date by adopting the double jeopardy
principle.
2. If a property loan
agreement includes both the provision on penalties for defaults and the
provision on interest on overdue principal or other actions against the
borrower’s failure to make debt payments on the due date, the Court shall
consider and make decision on the case by applying relevant regulations in the
Civil Code, the Law on credit institutions and legislative documents providing
guidelines for implementation of the Civil Code and the Law on credit
institutions applicable at the date of concluding the loan agreement and at the
interest calculation date and following the principle mentioned in Clause 1 of
this Article.
Article 13. Interest and interest
rate specified in the Court’s judgment or decision
1. When settling criminal
cases, administrative cases, civil, marriage and family, business, commercial
or labour cases and matters together with deciding the amounts which persons
having asset-related obligations or liabilities must pay to the judgment
creditors, the Court must make such decisions on the Court's judgments or
decisions (decision part) as follows:
a) In case of late performance of liabilities
defined in a contract which includes the parties’ agreement on interest
payment, the Court shall decide that from the date following the date of
first-instance trial to the end of the judgment enforcement, the judgment
debtor is liable to pay interest on the outstanding judgment debt at the agreed
interest rate which must be conformable with applicable laws; if the agreed
interest rate is not available, the Court shall decide application of the
interest rate prescribed in Clause 2 Article 468 of the 2015 Civil Code.
b) In case interests are charged on amounts payable
to the state budget as regulated by laws or non-contractual damage
compensations or the late performance of asset-related liabilities arising in
or out of the contract on which the interest is not agreed upon by the parties,
the Court shall decide that from the effective date of the judgment or decision
(in case the judgment-enforcing authorities are entitled to proactively decide
the judgment enforcement) or from the date of submission of request for
judgment enforcement by the judgment creditor (with respect to amounts payable
to the judgment creditor) to the end of the judgment enforcement, the judgment
debtor is liable to pay an interest on the judgment debt arrears calculated at
the interest rate prescribed in Article 357 or Article 468 of the 2015 Civil
Code, unless otherwise prescribed by laws.
2. “the agreed interest rate”
referred to in Clause 1 of this Article is the interest rate on overdue debts
agreed upon by the parties in the signed contract or at the trial. In case the agreed
interest rate is not available, the interest rate on an overdue debt shall be
as much as 150% of the interest rate on an undue debt.
Article 14. Effect
1. This Resolution has been
ratified by the Council of Justices of the Supreme People’s Court on January
11, 2019 and comes into force from March 15, 2019.
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3. With regard to a criminal,
administrative, civil, marriage and family, business, commercial or labour case
which has been handled by the Court and on which the Court’s judgment or
decision becomes effective before the effective date of this Resolution, the Court’s
judgment or decision cannot be appealed according to the cassation or reopening
procedure on the basis of this Resolution, unless the Court’s judgment or
decision is appealed on other grounds.
ON BEHALF OF
THE COUNCIL OF JUSTICES
CHIEF JUSTICE
Nguyen Hoa Binh