When the debtor goes missing, will the money not be returned?
In real life, it is very common for the debtor to "disappear" when he owes money, and it is very common for him to not accept or block WeChat, but at this time, there is a certain risk to the creditor.
So how can the creditor recover the money owed? How to protect their legitimate rights and interests?
1. The risk faced by the creditor due to the disappearance of the debtor.
1.Inability to collect debts in a timely manner: Creditors may not be able to collect debts in a timely manner after the disappearance of the debtor, which can lead to:Debts cannot be paid on timeEven the consequences of not being able to pay off will occur.
2.Increased recovery costs: In the event that the creditor disappears, the debtor may resort to litigation in order to recover the debtThe cost of debt collection can increase significantly
3.Legal risk: May if creditors are unable to act in a timely mannerExceeding the statutory statute of limitations, which will result in the creditor's rights and interests not being protected by law.
2. If the debtor is missing, how can the creditor collect the debt?
Apply for a payment orderIn this case, it is more convenient and can quickly collect the money, but the plaintiff needs to have an IOU or IOU, and the other party's ID number and household registration address can find the debtor. Bring your ID card, IOU and other evidence to submit an application for a payment order to the people's court. If the evidence and information are complete, the court will issue a payment order to the debtor within 15 days. After receiving the payment order, if the other party fails to repay the money within 15 days, it may apply for compulsory enforcement.
Sue the person in arrearsWhen the debtor is missing, the creditor can sue the debtor in the form of a lawsuit. In the course of litigation, the creditor needs to provide sufficient evidence to prove that the debtor has indeed defaulted on the debt. After the creditor wins the lawsuit, the creditor can recover the arrears by applying for enforcement.
Apply for property preservationBefore filing a lawsuit, the creditor can apply to the court for property preservation measures to prevent the debtor's property from being transferred or hidden, so as to ensure that the creditor's rights and interests are effectively enforced after the judgment.
Request the court to declare the debtor missingWhen a person's whereabouts have reached the statutory time limit, the interested person may request the court to declare the person missing, and the court will rule that the person is missing.
The effect of the declaration of disappearance is manifested in the appointment of a property custodian, which can temporarily solve the situation of the missing person's property being left unmanaged, and then the creditor can claim the return of the debt from the property custodian, so as to protect the interests of interested parties.
III. The relevant legal basis for a declaration of disappearance
1.Article 40 of the Civil Code of the People's Republic of China: Where a natural person's whereabouts have been unknown for two years, the interested party may apply to the people's court for a declaration that the natural person is a missing person.
2.Article 42 of the Civil Code of the People's Republic of China: The property of a missing person shall be entrusted to him or her spouse, parents of adult children, or other persons who are willing to act as custodians. Where there is a dispute over custody, and there is no person provided for in the preceding paragraph, or the person provided for in the preceding paragraph does not have the capacity for escrow, the person designated by the people's court is to take custody on hold.
Fourth, Qin Jiaze's lawyer team suggests
1.Create security when borrowing: Before borrowing, the creditor should clearly agree with the debtor on some terms, such as requiring the debtor to provide a guarantor, collateral, or other form of security. Once a security is created, the creditor can recover the amount owed through the guarantor or collateral when the debtor disappears.
2.Standardize the format of the IOU, clarify the content of the IOU, including who borrows from, the amount borrowed, and the signature of the debtor, and check whether the signature is consistent with the signature of the ID card.
Faced with the disappearance of the debtor, the creditor should take proactive measures. Recover the arrears through proper legal channels and protect their legitimate rights and interests. At the same time, when borrowing, it is necessary to strengthen risk awareness and avoid risks in advance, such as setting up guarantees, which is also the key to avoiding similar disputes.