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THE COUNCIL OF
JUDGES
SUPREME PEOPLE'S COURT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
02/2022/NQ-HDTP
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Hanoi, September
6, 2022
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RESOLUTION
ON GUIDELINES FOR
APPLICATION OF SOME PROVISIONS OF THE CIVIL CODE ON TORT LIABILITY
THE COUNCIL OF JUDGES OF SUPREME PEOPLE'S COURT
Pursuant to the Law on Organization of People's
Courts dated November 24, 2014;
To properly and consistently apply a number of
provisions in Chapter XX on tort liability of the Civil Code dated November 24,
2015;
After consulting with the Chief Procurator of
the Supreme People's Procuracy and the Minister of Justice,
HEREBY RESOLVES:
Article 1. Scope
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Article 2. Elements to be established to prove
the tort liability specified in Article 584 of the Civil Code
1. The tort liability in the
case specified in Clause 1, Article 584 of the Civil Code exists when the
following elements are fully established:
a) An tortious act that caused harm or damage to
the life, health, property, honor, dignity, property, rights and legitimate
interests of others;
b) The damage exists, which is physical damage or
mental damage;
Physical damage is the identifiable actual physical
loss of the aggrieved person, including property damage that is unrecoverable;
reasonable costs to prevent, limit or remedy the damage; actual income that is
lost or reduced because property, health, life, honor, dignity, reputation,
rights and other legitimate interests are infringed.
Mental damage is a mental loss caused by infringing
upon the life, health, honor, dignity, reputation, rights and other personal
interests of the aggrieved person or his or her relatives. and need to be
compensated for that loss.
c) There is a causal link between the resulting
damage and the tortious act. The resulting damage must be the inevitable result
of the tortious act and vice versa, the tortious act is the causation of the
damage.
2. If property causes damage,
the owner or possessor of the property must take on the tort liability, except
for the case guided in Clause 3 of this Article.
a) The property owner must take on liability for
damage caused by the property, unless the person possessing such property bears
tort liability under the guidance at Point b, Clause 2 of this Article.
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For example: A sold a house to B, the house sale
contract was notarized, B has paid 80% of the purchase price to A but did not
receive the house when the house caught on fire, spreading to house C causing
damage. According to Clause 1, Article 12 of the Law on Housing 2014, the time
of transfer of ownership is the time when the buyer has paid in full and
received the house, unless otherwise agreed. In this case, B has not paid the
full amount and has not received the house, so A has not transferred the
ownership of the house to B. Therefore, A is still the legal owner of the house
and bear tort liability to C.
b) The possessor who is not the owner must
compensate for damage if he is holding, directly or indirectly controlling the
property as the holder of the right to the property at the time of causing the
damage.
For example: A is the owner of a car who has handed
over that car to B. B was driving the car in traffic and caused an accident and
caused damage, it is necessary to distinguish two cases:
- If A hired B to drive a car
and pays B's wages, the use of the car is decided by A. In this case, A is the
person who possesses and controls the car. Therefore, A is liable for damages,
unless otherwise agreed.
- If A delivered a car to B
through a legal property lease contract, the use of the car is decided by B. In
this case, B is the person who possesses and controls the car. Therefore, B is
liable for damages, unless otherwise agreed.
3. The tortfeasor, property
owner, or property possessor does not bear tort liability in case the damage is
caused by force majeure events or entirely at fault of the aggrieved person,
unless otherwise agreed or otherwise provided by law.
a) Force majeure event is an event that occurs
objectively, which cannot be foreseen and cannot be recoverable although all
necessary and reasonable measures have been taken.
Example 1: A's house is under construction, is in normal
use and shows no signs of damage. A sudden, unforeseeable tornado swept A's
roof onto passerby causing damage. This case is a force majeure event, so A
does not bear tort liability.
Example 2: A storm is forecasted, A has taken
precautionary measures according to the guidance of the competent authority in
local area. However, the storm was so strong that it blew off the roof of A's
house and caused damage to pedestrians. This case is a force majeure event, so
A does not bear tort liability.
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For example: A was driving a car (which he owns) in
accordance with the Road Traffic Law, C crashed into A's car on the road to
commit suicide. In this case, A does not bear tort liability for damage caused
by C's fault.
Article 3. Principles of compensation for damage
specified in Article 585 of the Civil Code
1. Regarding
Clause 1, Article 585 of the Civil Code
a) “Actual damage” means damage that has occurred
under the guidance at Point b, Clause 1, Article 2 of this Resolution,
converted into money at the time of compensation settlement. Damage arising
after the time of first settlement of compensation shall be determined at the
time of subsequent settlement of compensation at the request of the aggrieved
person.
For example: A caused injury to B that B has had to
treat for a long time. At the time the Court settles the compensation, the
actual total damage is X dong, including: treatment costs, lost or reduced
income; costs for caregivers, metal loss. After that, B still has had to
continue to receive treatments, the expenses incurred after the time of the
Court's settlement will be settled in another case at the request of the
aggrieved person.
b) “Damage to be fully compensated” means all
actual damage that must be compensated.
c) “Damage to be compensated in time” means damage
that must be compensated as soon as possible in order to prevent, limit and
remedy damage.
During the settlement of the case, the Court may
apply one or several temporary urgent measures as prescribed by the civil
procedure law to settle urgent claims of the aggrieved person (such as forcing
the performance of partial obligation to compensate for loss of life or health
in advance; or forcing the performance of partial support obligation in
advance, etc.).
d) In order to ensure complete and timely
compensation for damage, the settlement of compensation issues in criminal or
administrative cases must be carried out together with the settlement of
criminal or administrative cases.
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dd) The claimant for damage must clearly state each
item of damage actually occurred, claimed compensation amount and documents
supporting that his/her claim is grounded.
In case the damage claimant is unable to collect
documents by himself/herself, he/she has the right to request the court to
collect documents in accordance with the Civil Procedure Code.
2. Regarding
Clause 2, Article 585 of the Civil Code
The extent of damage that is too great for the
financial situation of the person responsible for compensation is a case where
there are grounds to prove that if the Court orders compensation for the entire
damage, the defendant’s financial situation is not enough to enforce the
judgment.
For example: A person unintentionally sets fire to
another's house, causing damage of 1,000,000,000 VND. The tortfeasor has total
assets of 100,000,000 VND, the average monthly income is 2,000,000 VND. This
extent of damage is too great compared to the financial situation of the
tortfeasor.
3. Regarding
Clause 3, Article 585 of the Civil Code
“The claimed compensation amount no longer
consistent with reality” means that due to a change in the socio-economic
situation; price fluctuations; change in injury status, working ability of the
aggrieved person; a change in the financial situation of the tortfeasor, then
the claimed compensation amount is no longer consistent with such change.
The aggrieved person or the tortfeasor requesting a
change in the claimed compensation amount must file a written request for the
change in the claimed compensation amount. Attached to the request are
documents as a basis for requesting a change in the claimed compensation
amount.
4. Regarding
Clause 4, Article 585 of the Civil Code
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For example: A and B were both driving a car on
road, then they both hit together, resulting in A’s loss of 100,000,000 VND.
The competent authority determined that A and B are jointly at fault with a 50%
degree of fault each. In this case, B must compensate A 50,000,000 VND (50% of
the damage).
5. Regarding
Clause 5, Article 585 of the Civil Code
"The aggrieved party with infringed rights and
interests shall not be compensated if the damage occurs due to his/her failure
to apply necessary and reasonable measures to prevent or limit damage to
himself/herself" is the case where the aggrieved party would know, foresee
that if no precautionary measures has been taken, the damage will occur and she
is able to take these measures to prevent and limit the damage from occurring
but she/he has let the damage happen, then the aggrieved party shall not be
compensated for the damage.
For example: A's house was caught on fire, B parked
his car near A's house, B knew that if he didn’t move it, the fire would spread
to burn B's car, and B was able to move it but B did not do that. In this case,
B is not entitled to compensation.
Article 4. Determination of the age of the
tortfeasor according to Article 586 of the Civil Code
The age of the tortfeasor is identified at the time
of causing the damage. In case it is not possible to determine the exact age of
the tortfeasor, their date of birth shall be determined as follows:
1. In case the month can be
determined but the date cannot be determined, the last day of that month shall
be used as the date of birth;
2. In case the quarter can be
determined but the day and month cannot be determined, the last day of the last
month in that quarter shall be used as the date of birth;
3. In case the half of the
year can be determined but the day and month cannot be determined, the last day
of the last month in that half year shall be used as the date of birth;
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5. If the year of birth cannot
be determined, an assessment must be carried out to determine the age.
In case the age assessment results only determine
the age range of the tortfeasor, the Court shall use the lowest age within the
determined age range to determine their age.
For example: If the expertise conclusion states
that M's age is between 13 years and 6 months to 14 years and 2 months, the age
of M is 13 years and 6 months.
Article 5. The statute of limitations for filing
a tort claim specified in Article 588 of the Civil Code
1. If the tortious act is
committed before or after January 1, 2017 (the effective date of the Civil
Code) and the defendant files a tort claim from January 1, 2017, the statute of
limitations for filing a tort claim is 03 years from the date on which the victim
knows or should know that his/her legitimate rights and interests have been
infringed.
2. The time which the victim
knows that his/her legitimate rights and interests have been infringed is when
he/she realizes or can confirm that his/her legitimate rights and interests
have been infringed.
For example: On July 2, 2022, A discovered that a
mass fish death happened in his pond. A suspected that the cause was wastewater
from house B, so A requested the environmental assessment agency to conduct an
assessment of the cause. On August 15, 2022, A received the inspection results
about the main cause of damage being the wastewater from house B. In this case,
the time when A has known his rights and interests have been infringed is
August 15, 2022.
3. The condition that a victim
should know that his/her lawful rights and interests have been infringed must
be under normal conditions and circumstances, if damage occurs, that person
should know his/her lawful rights and interests have been infringed or is
required by law that he/she should know.
Example 1: On June 20, 2022, A caused injury to B
and on the same day B had to be hospitalized for treatment of injury. In this
case, the time B should know that his rights and interests have been violated
was June 20, 2022.
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Article 6. Determination of damages for damaged
property specified in Article 589 of the Civil Code
1. The
damages for lost, destroyed or damaged property specified in Clause 1, Article
589 of the Civil Code shall be based on the agreement of the parties; in case
the agreement fails, the damages shall be determined as follows:
a) In case the property is an object, the damages
for the lost or destroyed property shall be determined based on the market
price of the property of the same type or the property with the same features,
technical standards, uses, and the level of wear and tear of the lost or
destroyed property at the time of compensation settlement.
If the property is money, the damages shall be
determined as the lost or damaged amount of money.
As for valuable papers that are lost or damaged but
cannot be restored, the damages shall be determined as the value of the lost or
destroyed valuable papers at the time of compensation settlement. Where
valuable papers are lost or damaged but can be restored, the damages shall be
determined as expenses necessary to restore those papers.
b) As for damaged property, the damages shall be
the cost to repair and restore the property to its pre-damaged condition at the
market price at the time of settlement of compensation to determine the loss;
if the damaged property cannot be repaired or restored, the damages shall be
determined according to the guidance at Point a, Clause 1 of this Article.
2. Benefits
associated with the use and exploitation of lost or reduced property specified
in Clause 2, Article 589 of the Civil Code are yields and profits that the
aggrieved person has or is expected to have obtained if the property is not
lost or destroyed.
Yields and profits are calculated according to the
actual price being earned, if not yet earned, at the market price of the same
type or the 1-month average rental price of the property of the same type or
property with the same technical standards, features, uses and quality at the
time the first-instance Court determines the damages; as for property on the
market that are not available for rent, their yields and profits are determined
on the basis of the average income of three consecutive months brought by the
damaged property under normal conditions before the time when the loss
occurred.
3. Reasonable
expenses to prevent, limit and remedy the loss specified in Clause 3, Article
589 of the Civil Code are actual and necessary expenses at the time of spending
under normal conditions for the imposition of necessary measures to prevent
further loss; repair and restore the original condition of the infringed
property.
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Article 7. The damages for harm to health
prescribed in Article 590 of the Civil Code
1. Reasonable costs for
treating, nursing and rehabilitating health, and functional losses and
impairment of the aggrieved person. including;
a) Expenses for medical examination and treatment
in accordance with the law on medical examination and treatment for the
aggrieved person; hiring vehicles to take the aggrieved person to the health
facility and back to their place of residence;
b) The cost of improving health of the aggrieved
person is determined as 01 day of regional minimum wage at the health facility
for 01 day of medical examination and treatment according to the number of days
in the medical record;
c) The cost of health recovery and health
rehabilitation includes expenses for the recovery, support or replacement of a
part of lost or reduced functions of the aggrieved person’s body.
2. The actual lost or reduced
income of the aggrieved person is determined as follows:
a) In case the aggrieved person has a stable income
from salary or wages, it shall be determined according to the salary or wage
amount of the aggrieved person during the period of lost or reduced salary or
wage;
b) In case the aggrieved person has an unstable
income from salary or wage, the salary or wage is determined based on the
average salary or wage amount of the 3 consecutive months preceding the time of
loss. In case it is impossible to determine 03 consecutive months' salary
before the time of loss, it shall be based on the average income of workers of
the same type in the local area during the period when the actual income is
lost or reduced. If it is impossible to determine the average income of workers
of the same type in the local area, the actual lost or reduced income that is
compensated is 01 day of regional minimum wage in the place where the aggrieved
person resides for 01 day of loss.
Daily regional minimum wage equals 01 month's
regional minimum wage as prescribed by the State divided by 26 days.
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a) Reasonable expenses for caregiver(s) of the
aggrieved person during the treatment period, including: vehicle fares, and
rented room rents according to the average prices in the place where the
aggrieved person has been treated (if any);
b) The actual lost income of the caregiver(s) of
the aggrieved person during the treatment period is determined according to the
guidance in Clause 2 of this Article;
c) In case the aggrieved person loses his/her
capacity to work and must be taken care of by someone regularly, the reasonable
expense for taking care of the aggrieved person is determined to be 01 day of
regional minimum wage in the place where the aggrieved person resides for 01
day to take care of the aggrieved person.
Article 8. The damages for harm to life
specified in Clause 1, Article 591 of the Civil Code
The damages for harm to life as prescribed at
Points a, b and c, Clause 1, Article 591 of the Civil Code is determined as
follows:
1. The damages for harm to
health as prescribed in Article 590 of the Civil Code, guided in Article 7 of
this Resolution, shall be calculated from the time the aggrieved person’s
health is infringed until the time the aggrieved person is dead.
2. Reasonable expenses for
burial, including: cost of coffins; incineration or burial cost; cost of
necessary items for laying the deceased in the coffin, mourning headbands,
incenses, candles, flowers, hearse rents and other expenses for burial or
incineration of the victim according to local customs and practices. Do not
accept a tort claim for costs of sacrifices, worship, meals, grave
construction, and relocating the grave.
3. Alimony for those for whom
the aggrieved person is obliged to support or raise before death is determined
as follows:
a) The level of support is based on the income,
actual ability of the person with the support obligation and the essential
needs of the supported person, but must not be lower than 01 month's regional
minimum wage in the place where the supported person resides for each month;
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c) The entities entitled to compensation for
alimony are those for whom the aggrieved person is obliged to support in
accordance with the law on marriage and family.
Article 9. The damages for harm to honor,
dignity or reputation prescribed in Article 592 of the Civil Code
The damages for harm to honor, dignity or
reputation prescribed in Article 592 of the Civil Code are determined as
follows:
1. Reasonable costs to limit
and remedy the damage, including: Necessary expenses for the repossession and
deletion of articles, publications, and data with contents that offend the
honor, dignity and reputation of the aggrieved person; expenses for the
collection of documents and evidence proving that honor, dignity and reputation
are infringed; vehicle fares, rented room rents (if any) at the average price
in the place where the aggrieved person pays to request the competent
authorities to verify the facts and correct them on the mass media; expenses
for organizing public apology and correction at the place of residence or
workplace of the aggrieved person and other actual and necessary expenses to
limit and remedy the damage (if any).
2. The actual lost or reduced
income is determined as follows:
a) Before the honor, dignity and reputation are
infringed, the aggrieved person has actual income, but due to the harm to the
honor, dignity and reputation, the aggrieved person must perform the following
tasks in order to limit or remedy the damage, so their actual income is lost or
reduced, they will be compensated for that lost or reduced actual income;
b) The determination of the actual lost or reduced
income of the aggrieved person shall comply with the guidance in Clause 2,
Article 7 of this Resolution.
Article 10. Damage caused by illegal acts of law
enforcers specified in Article 598 of the Civil Code
If the damage caused by illegal acts of law
enforcers falls within the scope of the State's compensation liability, the
State shall have to pay compensations according to the Law on State
Compensation Liability. In case the aggrieved person files a tort claim, the
Court shall consider accepting and settling it according to the Law on
Compensation Liability of the State.
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1. “While under direct
management of the school” specified in Clause 1, Article 599 of the Civil Code,
is within the time and space that the school has picked up and is responsible
for managing, taking care of, and teaching people who are under fifteen years
old.
2. “While under direct
management of the hospital or other superior legal entities” specified in
Clause 2, Article 599 of the Civil Code is within the time and space that the
hospital, other legal entities have received and have responsibility for the
management and treatment of the legally incapacitated person.
Article 12. Compensation for the damage caused
by sources of extreme danger specified in Article 601 of the Civil Code
1. The source of extreme
danger is determined in Article 601 of the Civil Code and relevant legal
documents.
Example 1: Road motor vehicles, including cars;
tractors; trailers or semi-trailers towed by cars or trucks; two-wheeled
motorcycles; three-wheeled motorcycles; motorcycles (including electric
scooters) and similar vehicles as prescribed in Clause 18, Article 3 of the Law
on Road Traffic 2008 are sources of extreme danger.
Example 2: Weapons prescribed by the Law on Management
and Use of Weapons, Explosives and Combat Gear in 2017, amended in 2019 are
sources of extreme danger.
2. A person assigned by the
owner of the source of extreme danger to possess and use the source of extreme
danger in accordance with law must compensate for the damage caused by the
source of extreme danger, except for the case the owner of the source of
extreme danger and that person otherwise agreed not contrary to law, social
ethics or are not intended to evade compensation.
For example: the following agreements are not
against the law, social ethics or are not intended to evade compensation:
- Agreement to be held jointly
and severally liable for the damages;
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3. In case the owner of a
source of extreme danger assigns another person to possess or use a source of
extreme danger in contravention of law and causes damage, the owner must
compensate for the loss.
For example: If the owner knows that he or she does
not have a driver's license for a car, but still assigns the right to possess
and use it to the mentioned person, then the owner must compensate for the loss
caused by that person.
4. Owners, possessors and
users of sources of extreme danger must compensate for the damage caused by
sources of extreme danger even without fault, except for the following cases:
a) The damage occurred was entirely due to
intentional fault of the aggrieved person;
For example: Knowing that an area having a sign of
dangerous high voltage source of electricity, A still steals things and gets
electrocuted to death is a case entirely due to the intentional fault of the
person who suffers the loss.
b) Damage occurs in case of force majeure or
emergency situation, unless otherwise provided for by law.
An urgent situation is a situation of a person who
wants to avoid a real danger that directly threatens his or her own or other's
public interests, legitimate rights and interests, or that of others, but has
no other choice but to cause less damage than the loss to be prevented.
Compensation liability in urgent situations shall
comply with Article 595 of the Civil Code.
For example: A was driving a car in accordance with
the Road Traffic Law, B was riding a motorbike in the opposite direction from A
and encroached on A's lane. In order to avoid causing an accident for B, A had
no choice but hit a motorcycle owned by C which is parked on the roadside
causing damage to C. This is an emergency situation, A does not have to
compensate C but B has to compensate C for damage because B has caused an
urgent situation under Clause 2, Article 595 of the Civil Code.
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a) If the owner or the person assigned by the owner
to possess and use lawfully is not at fault in allowing the source of extreme
danger to be illegally possessed or used, the illegal possessor or user must
compensate for all damage.
b) If the owner or the person assigned by the owner
to possess and use lawfully is at fault in allowing the source of extreme
danger to be illegally possessed or used, the owner or the person assigned by
the owner lawful possession and use and the unlawful possessor and user must
jointly compensate for damage.
Article 13. Entry into force
1. This Resolution is approved
by the Council of Judges of the Supreme People's Court on September 6, 2022 and
enters into force as of January 1, 2023.
This Resolution replaces Resolution No.
03/2006/NQ-HDTP dated July 8, 2006 of the Council of Judges of the Supreme
People's Court on guidelines for the application of a number of provisions of
the Civil Code 2005 on tort claims.
2. As for tort claims filed
before January 1, 2017 (the effective date of the Civil Code), the provisions
of the Civil Code 2005 and other documents shall apply of the Civil Code 2005
and Resolution No. 03/2006/NQ-HDTP dated July 8, 2006 of the Council of Judges
of the Supreme People's Court for settlement, except for the guidance on the
statute of limitations as specified in Article 5 of this Resolution.
3. As for court judgments or
decisions that have taken legal effect before the effective date of this
Resolution, the guidance in this Resolution shall not apply to appeals under
cassation or reopening procedures, except where the appeal against the judgment
or decision has other grounds.
4. Difficulties that arise
during the implementation of this document should be reported to the Supreme
People’s Court (via the Department of Legal and Science) for guidance.
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ON BEHALF OF
THE COUNCIL OF JUDGES
THE CHIEF JUSTICE
Nguyen Hoa Binh