MINISTRY OF EDUCATION AND TRAINING UNIVERSITY OF ECONOMICS HO CHI MINH CITY _________________________ HUYNH TUONG LINH PERSONAL BANKRUPTCY IN VIETNAM: THE NECESSITY AND POSSIBILITY MASTER THESIS IN LAW Ho Chi Minh City - 2019 MINISTRY OF EDUCATION AND TRAINING UNIVERSITY OF ECONOMICS HO CHI MINH CITY _________________________ HUYNH TUONG LINH PERSONAL BANKRUPTCY IN VIETNAM: THE NECESSITY AND POSSIBILITY Major: Economic Laws Code: 8380107 MASTER THESIS IN LAW SUPERVISOR 1. PHAM DUY NGHIA Ho Chi Minh City - 2019 DECLARATION This thesis is a presentation of my original research work. Wherever contributions of others are involved, every effort is made to indicate this clearly, with due reference to the literature, and acknowledgement of collaborative research and discussions. Author Huynh Tuong Linh CONTENT DECLARATION CONTENT SCHEDULE OF ABBREVIATIONS SCHEDULE OF TABLES SCHEDULE OF PICTURES SUMMARY TÓM TẮT CHAPTER 1.
THE NECESSITY TO REGULATE PERSONAL BANKRUPTCY IN VIETNAM. The volatility of consumer credit market. Insolvency in case of unlimited liability business. Other advantages that may come with the personal bankruptcy system.
INTRODUCTION TO INTERNATIONAL EXPERIENCES IN REGULATING PERSONAL BANKRUPTCY. A human right to declare bankruptcy. Role of culture and economic in the development of personal bankruptcy. Arguments on the adverse impacts of personal bankruptcy.
The historical evolution of personal bankruptcy. AN OVERVIEW OF INTERNATIONAL LEGISLATIONS ON PERSONAL BANKRUPTCY. Personal bankruptcy law in US. Personal bankruptcy law in Europe.
Personal bankruptcy law in Asia .KEY PROVISIONS OF PERSONAL BANKRUPTCY LAWS. Mechanism of debt liquidation. Protection against debt collection activities. Avoidance of abuse .APPLICATION OF PERSONAL BANKRUPTCY IN VIETNAM.
Personal bankruptcy in Vietnam as provided by the current law. Vietnamese lawmaker’s argument against personal bankruptcy. Proposed concept, prerequisites and recommendation for adaptation of personal bankruptcy in Vietnam law. 58 REFERENCES SCHEDULE OF ABBREVIATIONS BAPCPA – US Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 IRS – US Internal Revenue Service LOB 2014 – Vietnam Law on Bankruptcy 2014 UNCITRAL - United Nations Commission on International Trade Law US – United States of America USD – US Dollar UST – US Trustee USTP – US Trustee Program VND – Vietnam Dong SCHEDULE OF TABLES Table 3.
Summary of US Personal Bankruptcy Legislation Development Table 3. Summary of Europe Personal Bankruptcy Legislation Development SCHEDULE OF PICTURES Picture 1. The Growth of Consumer Credit in 2017 Picture 3. US Personal Bankruptcies in 1900-2004 Picture 3.
Private credit in Europe as a percentage of GDP Picture 4. US personal bankruptcy cases by chapter Picture 5. Debt liability in personal bankruptcy case SUMMARY Vietnam's credit market, especially the consumer credit sector, has grown steadily in recent years. However, under the current Vietnam law, an individual’s liability is unlimited, and personal bankruptcy is not recognised.
Because of the absence of a legal framework for personal bankruptcy, economically an individual cannot get out from the credit market and settle his/her debts in civilised ways when he/she has unfortunately become insolvent. Vietnamese lawmakers initially discussed the personal bankruptcy during the drafting of the LOB 2014 but concluded that allowing individuals and business households to declare bankruptcy is not urgent. By studying and analysing the Vietnam socio-economic conditions, international experiences with personal bankruptcy (of which the US personal bankruptcy legislation is mainly focused) and the potential challenges in case of Vietnam personal bankruptcy law to be adopted, this thesis is expected to find out whether the personal bankruptcy law is necessary, applicable and implementable to Vietnam. Upon the findings, it is believed that personal bankruptcy is necessary and applicable in consideration of socio-economic conditions in Vietnam.
The basics and preliminary mechanisms of personal bankruptcy to be adopted in Vietnam are also proposed in this thesis for future research. TÓM TẮT Thị trường tín dụng Việt Nam, đặc biệt là khu vực tín dụng tiêu dùng, đang trên đà tăng trưởng trong những năm vừa qua. Tuy nhiên, theo quy định pháp luật hiện tại của Việt Nam, trách nhiệm của một cá nhân là vô hạn, và phá sản cá nhân vẫn chưa được thừa nhận. Xuất phát từ sự thiếu vắng một hành lang pháp lý cho phá sản cá nhân, xét về phương diện kinh tế thì một cá nhân không thể thoát khỏi thị trường tín dụng và giải quyết những món nợ của mình theo con đường dân sự trong trường hợp họ không may bị vỡ nợ.
Nhà làm luật Việt Nam đã từng đề cập sơ bộ đến phá sản cá nhân trong quá trình soạn thảo Luật Phá sản 2014 nhưng đã kết luận rằng việc cho phép cá nhân và hộ kinh doanh cá thể được tuyên bố phá sản là không cấp thiết. Qua việc nghiên cứu và đánh giá điều kiện kinh tế-xã hội Việt Nam, những kinh nghiệm quốc tế đối với phá sản cá nhân (trong đó hệ thống pháp luật phá sản cá nhân của Hoa Kỳ được chú trọng) và những thử thách tiềm tàng trong trường hợp luật phá sản cá nhân Việt Nam được áp dụng, luận văn này được mong đợi sẽ làm rõ được việc liệu phá sản cá nhân có cần thiết, áp dụng được và có khả năng thực thi tại Việt Nam hay không. Dựa trên kết quả nghiên cứu, người viết tin rằng phá sản cá nhân là cần thiết và áp dụng được đối với điều kiện kinh tế-xã hội của Việt Nam. Những yếu tố cơ bản và phương thức sơ bộ của phá sản cá nhân áp dụng tại Việt Nam cũng được đề xuất trong luận văn này nhằm phục vụ cho các nghiên cứu khác trong tương lai.
Background information Over the past few years, accompanying the rapid growth of the economy, the private sector gains the leading role of Vietnam economic structure, and the market factors have been dismantling the command economy from day to day. Amongst other things under the market economy, the need for an adequate legal framework for bankruptcy activities is essential. It was recognised by the Vietnam government, as many issues in connection to the former Law on Bankruptcy were addressed and resolved by the LOB 2014. During the drafting of LOB 2014, though there were suggestions to include individual as a regulated entity thereof, the opposite opinion made up the majority, and the final draft of LOB 2014 omitted personal bankruptcy.
However, on the way to concluding the necessity of individual to be covered by the laws of bankruptcy, the mainstream rationale was only that the individual is not required by law to register for any capital when involving in the economic activities, and the civil laws should regulate its insolvency1. Such rationale seems not adequate.2 of Vietnam Constitution 2013 also provides for that “Participants in different economic sectors are equal, cooperate and compete under the law”. Therefore, giving the incorporate entity the right to declare bankruptcy but not giving the same to the individual entity, as the chance to restart not only its economic activities but also its social life, is not appropriate. On the side note, UNCITRAL, in accordance with its legislative guide on insolvency law, recommends that insolvency law should govern insolvency proceedings against all debtors engaged in economic activities, whether natural or legal2.
Research issues Under Vietnam's laws, natural persons have unlimited liability for their debt. This means that if an individual owes an amount of money, his or her responsibility 1 The Supreme People's Court, 2013. Explanation report on opinion collection, adjustment of draft law on bankruptcy (Amended), p. Legislative Guide on Insolvency Law, p.
2 to pay back will last until such time as the amount, together with any interest arising, is fully paid; or the death of that person (not to mention the event of an inheritance). Due to such a debt handling mechanism, there is no "full stop" to a debt unless it is duly paid or negotiated. Subsequently, the Vietnam jurisdiction can merely enforce or annul the debt, to the extent permissible bylaws, or recognize the agreement between the parties. That is literally all of their power over a debt case.
They can neither arbitrarily arrange for the repayment plan, cease any part of the debt nor apply whatsoever measure to protect the entitlement of the creditors and the debtor. This has resulted in some social and legal issues relating to debt collection and related activities. Firstly, the debt repayment pressure. Such pressure does not refer to the usual type of debt repayment, but rather to the unforeseen insolvency.
People who suffer from unforeseen overindebtedness will be shocked by the unexpectedly large size of financial obligation, which their sensible ability cannot afford. In such circumstances, there will be a remarkable chance that the insolvent will have adverse reactions, such as committing crimes to meet his financial needs or committing suicide. Either case may result in a spill - over effect. To name a few, some farmers in Gia Lai committed suicide when their pepper died in mass and the price of the product dropped significantly; a couple killed themselves with dynamite in Nghe An because of a debt of VND 5 billion; or a used car seller in Bac Giang robbed the bank to pay the debt of VND 400 million.
If these debtors and like - minded people had a more acceptable and less stressful repayment plan given and implemented by the competent authorities, would they make negative choices or spend effort restarting their lives? Secondly, the manner of debt collection. When a person becomes insolvent or is likely to become insolvent, it is common practice for him or her to seek another loan to repay existing loans. This practice makes the debt scattered and complicated, as does the debt collection, since the debtor will repay his debts for some emotional reasons instead of logical priority. The creditors, on the other hand, because they do not know exactly whether the debtor can pay the debt and when such payment is made, must do everything possible to accelerate debt collection.
Things may even get worse when the creditors know each other's involvement. The Growth of Consumer Credit in 2017 Source: Vietnam National Financial Supervisory Commission 2018 In addition, demand for consumer loans and trust loans in Vietnam has increased in both quantity and quality. According to the National Financial Supervisory Commission3, consumer credit was estimated to increase by 65% in 2017, higher than the growth of 50. The financial companies that provide such loans have increasingly developed their debt collection methods, including threats and harassment activities.
It contributed a huddle of debt collection activities to that chaotic picture, such as a report claiming that a financial company made 17 calls and 20 messages to a debtor's spouse in one day. Last but not least, the equal treatment of creditors. According to Article 42.1 of the Laws on Civil Procedures 2015, the court may join two or more cases which it has separately accepted to resolve. This provision is not practical in the event of debt collection, as the creditors should have an enormous conflict of interest, especially when the debtor appears to become insolvent.
Without a special procedure, creditors would take separate action to protect themselves, which could lead to an unfair outcome for creditors who lack information or other debt collection capabilities and legal procedures. The similar story can be found where a Hui (as known as the tontine, a Vietnamese scheme for saving money and raising capital) get “broken”. The Hui master in such story will be indebted to 3 National Financial Supervisory Commission, 2017. Financial Market Report, p.
In most cases, those unexpected creditors are helpless and suing the Hui master under an ordinary civil proceeding seems not suitable. Concerning this immense need for personal credit and liability, it is strongly necessary to redraw a more comprehensive picture of the necessity and possibility of personal bankruptcy in Vietnam.