THE
NATIONAL ASSEMBLY
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|
SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
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Law
No. 10/2017/QH14
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Hanoi,
June 20, 2017
|
LAW
ON STATE COMPENSATION LIABILITY
Pursuant to the 1992
Constitution of the Socialist Republic of Vietnam;
The National Assembly
promulgates the Law on State Compensation Liability Law.
Chapter I
GENERAL PROVISIONS
Article 1.
Scope
This Law provides for the state's
liability to pay compensation to individuals and organizations suffering from
damage caused by law enforcers in administrative management, legal proceedings
and judgment enforcement activities; damage to be compensated; the rights and
obligations of individuals and organizations suffering from damage;
compensation bodies; compensation procedures; restoration of honor;
compensation funds; the reimbursement liability; responsibilities of regulatory
bodies in state compensation.
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Individuals and organizations
suffering from material damage and/or mental sufferings (hereinafter referred
to as sufferers) caused by law enforcers in cases provided by this Law are
eligible for compensation by the state.
Article 3.
Interpretation of terms
For the purposes of this Law, these
terms below shall be construed as follows:
1. Sufferer refers to
individuals and organizations suffering from material damage and/or mental
sufferings caused by law enforcers in cases provided by this Law.
2. Law enforcer refers to a
person who is elected, approved, recruited or appointed to a position as
prescribed in law on officials and public employees and relevant law provisions
in a regulatory body to perform the tasks of administrative management, legal
proceedings or judgment enforcement, or a person who is assigned by a competent
state agency to perform tasks related to administrative management. legal
proceedings or judgment enforcement.
3. Claimant refers to any of
the following entities who have filed a claim for compensation: sufferers,
legal representatives, authorized representatives of sufferers, the heirs of
sufferers if the sufferer being natural person died or the heir of sufferer
being organization ceased to exist.
4. Illegal act of law enforcer refers
to an act of nonperformance or unlawful performance of a task or power.
5. Document serving as ground
for claim refers to a legally effective document issued by the regulatory
agency or competent person in accordance with regulations of law, which clarify
illegal act of a law enforcer or a judgment/decision which certifies that the
sufferer is eligible for compensation paid by the state.
6. Compensation person refers
to a person appointed by the compensation body to settle the compensation claim.
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8. Reimbursement refers to
liabilities of law enforcer who committed illegal act causing damage for
reimbursing an amount to state budget as prescribed in this Law.
Article 4.
Rules for state compensation
1. The state compensation shall be
paid as prescribed in this Law.
2. The compensation claim shall be
settled promptly, transparently, equally, in good faith, truthfully, and
legally; and be initiated on the basis of negotiation between the compensation
body and the claimant as per this Law.
The compensation claim in criminal procedures
shall be settled at the superior body of law enforcer causing damage as
prescribed in Section 1 Chapter V of this Law.
3. If a claimant filed a
compensation claim to any of compensation bodies prescribed in Clause 7 Article
3 of this Law and such compensation body accepted the claim, such claimant is
not allowed to file any compensation claim to other competent authorities,
except for the cases prescribed in Point b Clause 1 and Clause 2 Article 52 of
this Law.
4. The state shall settle a compensation
claim upon receipt of the document serving as ground for claim or combine the
compensation settlement in the course of criminal procedures or administrative
procedures at the court in case of compensation claims in administrative
management, civil procedures, administrative procedures, criminal judgment
enforcement, and civil judgment enforcement as prescribed in this Law.
5. In cases where the damage is
partly the sufferer’s fault, the state shall pay an amount which was deducted
from the damages corresponding to the sufferer's fault.
Article 5. The
right to claim compensation
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1. Sufferers;
2. Heirs of sufferers if the
sufferer being natural person died or the heir of sufferer being organization
ceased to exist;
3. Legal representatives of
sufferers if required as prescribed in the Civil Code;
4. Natural persons, juridical
persons that are authorized by entities prescribed in Clauses 1, 2, and 3 of
this Article to claim compensation from the state.
Article 6.
Period of prescription for lodging compensation claims
1. The period of prescription for
lodging compensation claims defined is 3 years from the date on which the
entity entitled to claim compensation prescribed in Clauses 1, 2, and 3 Article
5 of this Law receives the document serving as ground for claim, except for the
case specified in Clause 2 Article 52 of this Law and restoration of honor.
2. The period of prescription for
lodging compensation claims in administrative case settlement is determined
according to period of prescription for taking administrative proceedings.
3. Periods not included in period
of prescription for compensation claims:
a) Periods covering force majeure
events or objective hindrance prescribed in the Civil Code that prevent
entities eligible for compensation claim prescribed in Clauses 1, 2, and 3
Article 5 of this Law from exercising such right to claim compensation;
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4. Claimants shall bear burden of
proof in terms of the periods not included in the periods of prescription
prescribed in Clause 3 hereof.
Article 7.
Grounds for determination of state compensation liability
1. The state shall have compensation
liability when all of the following grounds are given:
a) The availability of any of the
proof to define the law enforcer's illegal act and a compensation claim
prescribed in Clause 2 hereof;
b) The sufferer's actual damage
within the state compensation liability as prescribed in this Law;
c) The existence of the causal link
between actual damage and the damaging act.
2. Proof to define the law
enforcer’s illegal act and equivalent compensation claim:
a) Document serving as ground for
claim prescribed herein and the claim for compensation filed to the enforcer’s
superior body or the competent court in charge of civil lawsuit settlement;
b) The court in charge of
administrative case settlement confirmed the existence of illegal act of the
defendant being law enforcer causing damage within the state compensation
liability and a compensation claim was lodged before or at the meeting to
check, access, and publicize evidence and settlement dialogue;
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Article 8.
Documents forming the basis for compensation claim in administrative management
Documents forming the basis for
compensation claim in administrative management prescribed in Article 17 hereof
include:
1. Judgments/decisions made by the
competent courts on confirmation of illegal acts of law enforcers;
2. Decisions partly or wholly
accepting complaints filed by the claimants as prescribed by law on complaints;
3. Decisions on cancellation,
revocation, amendments to administrative decisions which were promulgated
unlawfully;
4. Decisions on actions against
violations committed by law enforcers which were denounced on the basis of
denunciation as prescribed by law on complaints;
5. Decisions on actions against
violations committed by law enforcers which were denounced on the basis of
inspection findings as prescribed by law on inspection;
6. Decisions on disciplinary
actions against law enforcers that committed illegal acts;
7. Other documents as per the law
that meet the conditions prescribed in Clause 5 Article 3 of this Law.
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Documents forming the basis for
compensation claim in criminal procedures prescribed in Article 18 hereof
include:
1. Judgments made by competent
courts to confirm that sufferers are eligible for compensation;
2. Decisions made by courts,
procuracies, investigation bodies, agencies assigned to carry out certain
investigation activities that confirm that sufferers are eligible for
compensation;
3. Other documents as per the law
on criminal procedures that meet the conditions prescribed in Clause 5 Article
3 of this Law.
Article 10.
Document serving as ground for claim in civil procedures, administrative
procedures
Documents forming the basis for
compensation claim in civil procedures, administrative procedures prescribed in
Article 19 hereof include:
1. Criminal judgments/decisions
made by the competent courts confirming that presiding officers in civil
procedures, administrative procedures since they issued illegal
judgments/decisions or falsified case files/matter files;
2. Final and conclusive decisions
on handling of complaints made by competent chief justice or trial panel as
prescribed by law on civil procedures, administrative procedures confirming the
illegal acts of law enforcers in enforcement of temporary emergency measures;
3. Decisions on suspension of
investigation made by investigation bodies, decisions on suspension of cases
made by procuracies, courts as prescribed by law on criminal procedures
applying to presiding officers in civil procedures, administrative procedures
since they issued illegal judgments/decisions or falsified case files/matter
files but they were exempt from criminal liability as prescribed in Criminal
Code;
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5. Decisions on disciplinary
actions against presiding officers in civil procedures, administrative
procedures that issued illegal judgments/decisions or falsified case
files/matter files;
6. Other documents as per the law
that meet the conditions prescribed in Clause 5 Article 3 of this Law.
Article 11.
Document serving as ground for claim in criminal judgment enforcement
Documents forming the basis for
compensation claim in criminal judgment enforcement prescribed in Article 20
hereof include:
1. Judgments/decisions made by the
competent court on confirmation of illegal acts of law enforcers;
2. Decisions partly or wholly
accepting complaints filed by the claimants as prescribed by law on criminal
judgment enforcement;
3. Decisions on actions against
violations committed by law enforcers which were denounced on the basis of
denunciation as prescribed by law on complaints;
4. Decisions on disciplinary
actions against law enforcers that committed illegal acts;
5. Other documents as per the law
that meet the conditions prescribed in Clause 5 Article 3 of this Law.
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Documents forming the basis for
compensation claim in civil judgment enforcement prescribed in Article 21
hereof include:
1. Judgments/decisions made by the
competent court on confirmation of illegal acts of law enforcers;
2. Decisions partly or wholly
accepting complaints filed by the claimants as prescribed by law on civil
judgment enforcement;
3. Decisions on cancellation,
revocation, amendments to decisions on judgment enforcement which were
promulgated unlawfully;
4. Decisions on actions against
violations committed by law enforcers which were denounced on the basis of
denunciation as prescribed by law on complaints;
5. Documents issued by heads of
civil enforcement agencies accepting appeal by the procuracy as prescribed in
law on civil judgment enforcement;
6. Decisions on disciplinary
actions against law enforcers that committed illegal acts;
7. Other documents as per the law
that meet the conditions prescribed in Clause 5 Article 3 of this Law.
Article 13.
Rights and obligations of claimants
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a) request any of bodies prescribed
in Clause 7 Article 3 hereof to settle his/her compensation claim and is
notified of processing results;
b) file a
complaint/denunciation/lawsuit against illegal decision/act of persons
competent in settlement of compensation claim as prescribed in law on
complaints, denunciation and law on administrative procedures; complaints,
appeal against court's judgments and decisions as prescribed in law on
procedures;
c) request competent agencies or
organizations to restore his/her legitimate rights and interests as per the
law;
d) ask other persons to protect
his/her legitimate rights and interests;
dd) receive guidelines for
compensation claims from compensation-managing authority and enforcer’s
superior body;
e) authorize another natural or
juridical person to exercise right to compensation claim as prescribed in the
Civil Code;
g) and other rights as prescribed
by law.
2. A claimant being sufferer has
the obligations to:
a) provide materials and evidence
relating to compensation claim promptly, accurately, and truthfully and take legal
responsibility for such provision;
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c) prove the damage actually
occurred that is eligible for compensation as prescribed in this Law and the
existence of the causal link between actual damage and damaging act;
d) and other obligations as
prescribed by law.
3. A claimant being the legal
representative or the heir of sufferer which is natural person or organization
shall have rights and obligations prescribed in Clauses 1 and 2 of this
Article.
4. A claimant being the authorized
representative shall have rights and obligations prescribed in Points a, b, c,
d, and dd Clause 1 and Clause 2 hereof within the scope of authorization.
Article 14.
Rights and obligations of damage-causing law enforcers
1. A law enforcer causing damage
shall have the rights to:
a) Receive the document on
settlement of compensation claim directly related to his/her rights and
obligations as prescribed in this Law;
b) File a denunciation against
illegal decision/act of persons competent in settlement of compensation claim,
and determination of reimbursement liability as prescribed in law on
complaints; file a complaint, lawsuit against the decision on reimbursement,
appeal against court's judgments and decisions as prescribed in law on
complaints, law on administrative procedures;
c) and other rights as prescribed
by law.
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a) provide materials and evidence
relating to settlement of compensation claim at the request of compensation
body promptly, accurately, and truthfully and take legal responsibility for
such provision;
b) fully participate in settlement
of compensation claim at the request of compensation body and the court of
determining reimbursement liability at the request of enforcer’s superior body;
c) and reimburse to the state
budget money amounts already paid as compensation to sufferers under decisions
of enforcer’s superior body;
d) and other obligations as prescribed
by law.
Article 15.
Responsibilities of compensation bodies
1. Receive and accept compensation
claims.
2. Restore honor or request
enforcers’ superior bodies to restore honor of the sufferers as prescribed in
this Law.
3. Provide claimants with
explanation for their rights and obligations in the course of settlement of
compensation claims.
4. Verify damage; carry out
negotiation, settlement dialogue, amicable settlement in the course of
settlement of compensation claims as prescribed in this Law and other relevant
law provisions.
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6. Issue judgments and decisions on
settlement of compensation claims, enforce judgment/decision itself or request
enforcer’s superior body to enforce the judgment/decision.
7. Send judgments and decisions on
settlement of compensation claims to compensation-managing authority and other
entities as prescribed in this Law and other relevant law provisions.
8. Restore or propose competent
agencies or organizations to restore other legitimate rights and interests of
sufferers.
9. Provide claimants with
guidelines for compensation claim procedures.
10. Settle compensation-related
complaints and denunciations under the law on complaints and denunciations.
11. Participate in legal
proceedings at courts if a claimant filed a lawsuit in terms of settlement of
compensation claim, except for the case prescribed in Clause 1 Article 52 or
Article 55 of this Law.
12. Determine enforcer’s
reimbursement liability or request enforcer’s superior body to determine
enforcer’s reimbursement liability and collect given reimbursement as
prescribed in this Law.
13. Consider whether to take
disciplinary actions within their competence or request competent authorities
to consider whether to take disciplinary actions against the law enforcer
causing damage.
14. Send reports on settlement of
compensation claims, determination of reimbursement liability and disciplinary
actions against the law enforcer causing damage to competent authorities,
compensation-managing authority.
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Article 16.
Prohibited acts in settlement of compensation claims
1. Forging documents and papers or
providing truthful papers and evidence in compensation claims and in the course
of settlement of compensation claims.
2. Acting in connivance among claimants,
persons responsible for compensation settlement and concerned people for
self-seeking purposes in compensation.
3. Abusing positions and powers to
illegally intervene in the course of compensation settlement, determination of
reimbursement liability and consideration of disciplinary actions taken against
law enforcers causing damage.
4. Failing to settle compensation,
failing to make decision on settlement of compensation claims or settling
compensation in contravention of law.
5. Failing to determine
reimbursement liability or failing to consider taking actions against law
enforcers causing damage.
6. Harass, obstruct settlement of
compensation claims.
Chapter II
SCOPE OF ON STATE COMPENSATION LIABILITY
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The State shall be liable for
damages in the following cases:
1. Unlawfully issuing decisions on
penalties for administrative violations;
2. Unlawfully applying measures to
ward off administrative violations and secure the handling of administrative
violations;
3. Unlawfully applying one of the
following remedial measures for administrative violations:
a) Enforce dismantling of
facilities or parts of facilities which are constructed without licenses or
inconsistently with the license;
b) Enforce elimination of
infringement on products, packages, business facilities, or articles;
c) Enforce recall of unqualified
products and goods;
4. Unlawfully enforce the
implementation of decision on penalties for administrative violations;
5. Unlawfully applying one of the
following handling measures for administrative violations:
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b) Sending to reformatory schools;
c) Sending to correctional
facilities;
d) Sending to compulsory
detoxification centers;
6. Failure to apply or apply
following measures to protect denouncers upon their requests not in accordance
with the Law on denunciation:
a) Suspending, temporarily
suspending, cancelling partly or wholly decisions on disciplinary actions or
other decisions infringing legitimate rights and interests of denouncers;
resume positions, income, and other legitimate interests for denouncers at
their workplace;
b) Suspending, temporarily
suspending, cancelling partly or wholly administrative decisions/acts
infringing legitimate rights and interests of denouncers; resume positions,
income, and other legitimate interests for denouncers at their places of
residence;
c) Applying prevention, actions
against infringement or threats of infringement on life, health, assets, honor,
prestige, and reputation of denouncers as per the law;
7. Committing prohibited acts
prescribed in the Law on information access in terms of intentional provision
of falsifying information without issuing a denial or provide information
again;
8. Unlawfully issuing, revoking,
non-issuing certificates of enterprise registration, certificates of household
business registration, certificates of registration for investment, licenses
and license-equivalent documents;
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10. Unlawfully applying customs
procedures;
11. Unlawfully allocating land,
leasing land or recovering land, permitting land use purpose change,
compensating for and supporting ground clearance and resettlement; granting or
revoking certificates of rights to use land and own houses and other assets
attached to land;
12. Unlawfully issuing decisions on
handling of competitions cases;
13. Issuing patents according to
the legal basis that the applicant has no right to submit the application or
the applicant fails to meet the conditions for protection; refuse to issue a patent
with the reason that the applicant fails to meet the conditions for protection
without legal basis; and have the patent annulled without legal basis;
14. Unlawfully issuing decisions on
dismissal as disciplinary action to public employees at the position of less
than or equal to Director General.
Article 18.
Scope of compensation liability in criminal procedures
The State shall be liable for
damages in the following cases:
1. A person was detained for
emergencies without justifiable basis as prescribed in the Criminal Procedure
Code and he/she did not commit any violation of law;
2. An agency/person competent in
criminal procedures issues a decision to release, revoke the decision on
custody, refuse to approve the arrest warrant, temporarily detained decision
because he/she did not commit a breach of the law;
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4. An agency competent in criminal
procedure issues a judgment/decision affirming that the detainee who has
completely served or has been serving their termed imprisonment, life sentence,
person who has been sentenced to death or person who has been executed under
death sentence has not committed any criminal acts or his/her act has not
constituted crime;
5. An agency competent in criminal
procedures issues judgment/decision affirming that the person against whom
criminal case was instituted, who was prosecuted and brought to trial, or
judgment enforcement without being held in custody or detention, or serving
sentences has not committed an offence or his/her act have not constituted the
offence or the time limit for investigating the case has expired without proof
that the accused has committed the offense;
6. An agency competent in criminal
procedures issues a judgment/decision affirming that the person against whom
criminal cases was instituted, who was prosecuted and brought to trial for
several offenses in the same case or who has completely served his/her prison
terms did not commit any or some of these offenses and the penalty term of
combined sentence after combination imposed for remaining offenses is shorter
than the duration they were temporarily detained or served their imprisonment
sentences, and the person is entitled to compensation for the temporary
detention or imprisonment duration in excess of the aggregate term imposed for
the offense which he/she has committed;
7. An agency competent in criminal
procedures issues a judgment/decision affirming that the person against whom
criminal case was instituted or who was prosecuted and brought to trial for various
offenses in the same case and sentenced to death but the death penalty has not
yet been executed, did not commit the offense subject to the death penalty
while the aggregate term for remaining offences is shorter than the duration of
his/her temporary detention: and the person is entitled to compensation for
his/her temporary detention duration in excess of the aggregate term imposed
for the offense he/she has committed;
8. An agency competent in criminal
procedures issues a judgment or decision affirming that a person who was tried
for various offenses under different judgments and subject to different
penalties already aggregated by the court did not commit any offense or
committed one or certain offenses while the term for remaining offenses is shorter
than his/her temporary detention or imprisonment duration; and he/she is
entitled to compensation for his/her temporary detention or imprisonment
duration in excess of the aggregate term imposed for the offenses they have
committed;
9. An agency competent in criminal
procedures issues a judgment or decision affirming that a corporation against
whom criminal case was instituted, who was prosecuted and brought to trial, or
judgment enforcement has not committed an offence or his/her act have not
constituted the offence or the time limit for investigating the case has
expired without proof that the accused has committed the offense and such
corporation did not commit any violation of law;
10. Entities who have property
damaged as a result of seizures, impound, distrain, confiscation, frozen
accounts or other entities in conjunction with the cases prescribed in Clauses
1, 2, 3, 4, 5, 6, 7, 8 and 9 of this Article that are damaged.
Article 19.
Scope of state compensation liability in civil and administrative proceedings
The State shall be liable for
damages in the following cases:
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2. Apply temporary emergency
measures other than those requested by individuals, agencies or organizations;
3. Apply temporary emergency
measures beyond individuals', agencies' or organizations' requests;
4. Apply temporary emergency
measures for periods not in accordance with regulations of law or apply
temporary emergency measures without justifiable reasons;
5. A competent authority confirms
that a judgment/decision which has been legally effective is illegal and the
issuing person has faced disciplinary action or criminal liability;
6. Insert, remove, modify, swap,
destroy or damage documents and evidence or falsify the case or matter leading
the issuance of illegal judgment/decision.
Article 20.
Scope of state compensation liability in criminal judgment enforcement
The State shall be liable for
damages in the following cases:
1. Executing death sentences
imposed on persons not subject to death sentences as prescribed in Criminal
Code;
2. Jailing people beyond the prison
terms under court judgments or rulings;
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a) Judgment enforcement
postponement for convicts;
b) Judgment enforcement suspension
for persons who have been serving imprisonment sentences;
c) Mitigation of the prison
sentence’s term for persons who have been serving imprisonment sentences;
d) Releasing the convicts on
parole;
dd) The State President’s grant of
reprieve to the convicts;
e) The National Assembly’s grant of
general amnesty to the convicts.
Article 21.
Scope of state compensation liability in civil judgment enforcement
The State shall be liable for
damages in the following cases:
1. Unlawfully issuing or failing to
issue decisions on:
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b) Cancellation, revocation,
amendment to or cancellation of judgment enforcement decisions;
c) Application of measures to
secure judgment enforcement;
d) Coercion of judgment execution;
dd) Postponement of judgment
enforcement;
e) Suspension or termination of
judgment enforcement;
g) Resumption of judgment
enforcement;
2. Unlawfully executing or failing
to execute one of the decisions defined in Clause 1 of this Article.
Chapter III
DAMAGE TO BE COMPENSATED
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1. Damage to be compensated refers
to damage that actually incurs, interests prescribed in Articles 23, 24, 25, 26
and 27 of this Law and other expenses prescribed in Article 28 of this Law.
2. Amount of damages to be
compensated shall be determined at the time of acceptance of compensation claim
prescribed in Article 43 of this Law or at the time when the first-instance
court determines amount of damages in the cases prescribed in Clause 1 Article
52 and Article 55 of this Law. If a claimant institutes a lawsuit requesting
the court to settle the compensation claim as prescribed in Clause 2 Article 52
of this Law, the amount of damages shall be still be determined at the prior
time of acceptance of compensation claim.
3. The period of time as the basis
for determining damage to be compensated prescribed in Clauses 3, 4 and 5
Article 23, Article 24, Clauses 1, 2 and 3 Article 25, Clauses 1, 2, 3 and
Point a Clause 4 Article 26, Clause 3 Article 27 of this Law shall begin from
the date on which the damage has actually incurred until its termination.
The Government shall provide on
guidelines for this Clause.
Article 23.
Damage caused by asset infringement
1. If the assets have been already
disposed of or lost, the damage will be determined on the basis of the market
prices of like-kind assets or assets with the same properties and technical
standards and the depreciation of the assets at the time prescribed in Clause 2
Article of this Law. Time for determining current conditions of asset as the
basis for damages is the time when the damage actually occurs.
2. If the assets have been out of
order, the damage will be determined as related expenses for repair and
restoration, calculated according to the market prices at the time of
compensation prescribed in Clause 2 Article 22 of this Law; if the assets have
been out of repair or restoration, the damage will be determined under Clause 1
of this Article.
3. If the assets have been left
unused or unexploited, the damage will be determined as lost actual incomes.
For assets on lease on the market, lost actual incomes will be determined
commensurate with the average monthly rentals of like-kind assets or assets
with the same technical standards, properties, utility and quality at the time
prescribed in Clause 2 Article 22 of this Law; for assets not on lease on the
market, lost actual incomes will be determined as average 3-month incomes
brought about by the damaged assets under normal conditions before the time the
damage is caused;
4. Amounts of money that have been
already remitted into the state budget under decisions of competent authorities
or confiscated or kept for judgment enforcement, or deposited as security shall
be refunded to sufferers and interests thereof.
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If such amounts are not
interest-bearing loans, interests thereof shall be considered interests
accruing due to late payment in case of absence of an agreement as prescribed
in the Civil Code at the time prescribed in Clause 2 Article 22 of this Law.
5. If a sufferer cannot perform
civil or commercial transactions which have been effective and paid fines for his/her
breach of obligations in these transactions, the damages to be compensated is
the amount of fines as agreed and interests thereof.
If such fine is an interest-bearing
loan, interests thereof shall be considered legitimate as prescribed in the
Civil Code.
If such fine is a not
interest-bearing loan, interests thereof shall be considered interests accruing
due to late payment in case of absence of an agreement as prescribed in the
Civil Code at the time prescribed in Clause 2 Article 22 of this Law.
6. If damage is caused due to
beyond an emergency circumstance, the damage to be compensated is the part of
damage occurs.
7. The Government shall provide on
guidelines for this Article.
Article 24.
Damage due to loss of or decrease in actual incomes
1. Lost or decreased actual income
of a sufferer being individual shall be determined as follows:
a) Stable income earned from salary
or wage shall be determined according to amount of sufferer’s salary/wage
during the period in which his/her salary/wage has been lost or decreased;
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c) Unstable seasonal income is the
average income of local worker/employee at the same level during the period in
which his/her salary/wage has been lost or decreased; If the average income of
local worker/employee at the same level is unidentifiable, the lost or
decreased actual income to be compensated shall be one day’s minimum wage
applying to the region where the sufferer has been residing for one day of
damage.
One day’s regional minimum wage
equals one month’s regional minimum wage prescribed by the state divided by 26
days.
2. Lost or decreased actual income
of a sufferer being organization shall include incomes as prescribed in law on
corporate income tax.
The income to be compensated shall
be determined according to its average income of 2 consecutive years prior to
the time when the damage occurs. The average income shall be determined
according to financial statement of the organization as per the law. If the
organization has been found for less than 2 years until the time when the damage
occurs, the income to be compensated shall be determined according to the
average income during its actual operation as mentioned in its financial
statement as per the law.
Article 25.
Material loss due to the death of sufferers
1. Expenditures on medical
examination and treatment for the sufferer as prescribed in law on medical
examination and treatment before his/her death.
2. Expenditures on health fostering
for the sufferer before his/her death shall be determined as equal to one-day
minimum wage applying to the region where the health facility is located for
one day of medical examination and treatment based on the number of days stated
in the medical record.
3. Expenditures on caring for the
sufferer’s carer during medical examination and treatment period before his/her
death shall be determined as equal to one-day minimum wage applying to the
region where the health facility is located for one day of caring.
4. Expenditures on funeral for the
dead suffer shall be determined according to the funeral allowance prescribed
in law on social insurance.
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Article 26.
Material loss due to health damage
1. Expenditures on medical
examination and treatment for the sufferer as prescribed in law on medical
examination and treatment.
2. Expenditures on health fostering
for the sufferer shall be determined as equal to one day’s minimum wage
applying to the region where the health facility is located for one day of
medical examination and treatment based on the number of days stated in the
medical record.
3. Expenditures on caring for the
sufferer’s carer during medical examination and treatment period shall be
determined as equal to one day’s minimum wage applying to the region where the
health facility is located for one day of caring.
4. In case a sufferer loses his/her
working capacity and needs a regular caregiver, the damage to be compensated
will cover:
a) Expenditures given to the
sufferer’s caregiver shall be determined as equal to one-day minimum wage
applying to the region where the sufferer has been residing for one day of
caring;
b) Alimonies for persons for whom
the sufferer is currently obliged to provide shall be determined as equal to
one-day minimum wage applying to the region where recipient has been residing
for one month of alimony, unless otherwise prescribed by law or another amount
prescribed in a legally effective judgment/decision issued by competent
authority.
Article 27.
Damage due to mental suffering
1. Damage due to mental suffering
during the educational administrative measures at communes, wards and towns
shall be determined as equal to a half of day’s salary according to base salary
prescribed by the state (hereinafter referred to as daily base salary) for one
day of educational administrative measures at communes, wards and towns.
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3. Damage due to mental suffering
in case of institution of a criminal case, prosecution, trial or judgment
enforcement, prevention in criminal proceedings shall be determined as follows:
a) Damage due to mental suffering
in a case where the suffer is held in custody in an emergency shall be
determined as equal to two days’ base salary;
b) Damage due to mental suffering
in a case where the suffer is arrested, held in custody, detained or serving an
imprisonment penalty shall be determined as equal to three days' base salary
for one day of being held in custody, detained or serving an imprisonment
penalty;
c) Damage due to mental suffering
in a case where the suffer is not arrested, held in custody, detained or
serving a penalty other than imprisonment penalty shall be determined as equal
to two days' base salary for one day of not being held in custody, detained or
serving the penalty, except for the case prescribed in Point d of this Clause;
d) Damage due to mental suffering
in a case where the sufferer served a non-custodial sanction or a suspended
sentence shall be determined as equal to three days' base salary for one day of
serving the sanction or sentence;
dd) Damage due to mental suffering
in a case where the sufferer who has already served a penalty as stated in a
court's judgment/decision and then considered eligible for compensation by
another judgment/decision by the competent criminal procedure authority shall
be determined as equal to 2 days’ base salary for one day of the period in
which the latter judgment/decision has not been issued.
4. Damage due to mental suffering
in case of death of sufferers shall be determined as equal to three hundred
sixty months' base salary. If the sufferer dies, Clauses 1, 2, 3 and 5 of this
Article shall not apply.
5. Damage due to mental suffering
in case of infringement upon health shall be determined based on the extent of
health damage provided not exceeding thirty months' base salary.
6. Damage due to mental suffering
in a case where a public employee is faced with dismissal unlawfully shall be
determined as equal to one day’s base salary for one day of illegal dismissal.
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Article 28.
Extraordinary expenditures to be compensated
1. Extraordinary expenditures to be
compensated include:
a) Expenditures on rental of rooms,
travel, printing, sending of complaints or denunciation; hire of defenders or
protectors of rights and legitimate interests of sufferer;
b) Expenditures on relatives'
travel to visit detainees, prisoners.
Relatives of detainees or prisoners
shall be defined as prescribed in law on temporary detention or imprisonment
duration and law on criminal judgment enforcement.
2. The expenditures prescribed in
Point a Clause 1 of this Article shall be determined as follows:
a) The expenditure on rental of
rooms, travel, printing with legitimate invoices or supporting documents shall
be paid as determined as prescribed in Clause 2 Article 22 of this Law up to
the amount prescribed by the Ministry of Finance in terms of business trip
allowances provided for officials and public employees; and expenses associated
with holding regulatory bodies’ meetings.
If the claimant fails to present
legitimate invoices or supporting documents for the said expenditures, the
expenditure to be compensated shall be up to 6 month’s base salary at the time
prescribed in Clause 2 Article 22 of this Law for 1 year from the date on which
the complaint or denunciation is filed or the claimant involves himself/herself
in legal proceeding until the date on which a document on compensation settlement
is issued by the competent authority comes into force;
b) The expenditure on sending
claims or denunciation to regulatory bodies or competent persons shall be
determined according to the postal charge receipt at the time prescribed in
Clause 2 Article 22 of this Law.
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c) The expenditure on hire of defenders
or protectors of rights and legitimate interests of the sufferer shall be paid
according to under their contractual agreement provided not exceeding the
remuneration prescribed by the Government applying to defense counsels at the
request of presiding agencies. These expenditures are only paid to one defender
or one protector of rights and legitimate interests of the sufferer at a time.
3. The expenditure prescribed in
Point b Clause 1 of this Article shall be determined according to number of actual
relatives, visits provided not exceeding the maximum number of relatives and
visits as prescribed in law on temporary detention, imprisonment, and law on
criminal judgment enforcement. If the number of actual relatives, visits is
unproven, the expenditure shall be determined according to the maximum number
of relatives and visits as prescribed in law on temporary detention,
imprisonment, and law on criminal judgment enforcement.
4. The period of time as the basis
for determination of expenditures to be compensated prescribed in this Article
shall begin from the date on which the damage occurs until the date on which a
document on compensation settlement is issued by the competent authority comes
into force.
5. The Government shall provide on
guidelines for this Article.
Article 29.
Restoration of lawful rights and interests of sufferers
1. Apart from damage to be
compensated prescribed in Articles 23, 24, 25, 26, 27 and 28 of this Law, a
sufferer being individual is also entitled to restore the following lawful
rights and interests:
a) Resume position (if any), job
and benefits as prescribed in law;
b) Restore right to learn;
c) Resume membership in political
organizations, socio-political organizations, political-social-professional
organization, social organizations, and social-professional organizations.
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3. Procedures for restoration of
lawful rights and interests prescribed in Clause 1 and Clause 2 of this Article
shall be carried out as prescribed by law and regulations and charters of
relevant organizations.
Article 30.
Return of assets
1. Assets seized, held in custody,
distrained or confiscated unlawfully will be returned immediately after the
decisions on asset seizure, custody, distraint or confiscation are cancelled.
2. The return of assets held in
custody, confiscated unlawfully in administrative management shall be carried
out as prescribed in law on actions against administrative violations.
3. The return of assets distrained
unlawfully in civil judgment enforcement shall be carried out as prescribed in
law on civil judgment enforcement.
4. The return of assets seized
unlawfully in procedural activities shall be carried out as prescribed in law
on procedural activities and other relevant law provisions.
Article 31.
Honor restoration
1. Any sufferer in criminal
procedures, public employee faced with dismissal unlawfully, person faced with
administrative measures, including bringing to reformatory school, correctional
facility, compulsory detoxification center unlawfully shall be entitled to have
his/her honor restored.
2. Enforcer’s superior body shall
proactively restore the sufferer’s honor in the circumstances prescribed in
Clause 1 of this Article. The honor restoration shall be carried out as
prescribed in Section 3 Chapter V of this Law.
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1. The state shall not compensate
for damage caused in the following circumstances:
a) Damage occurs entirely due to
the fault of the suffer;
b) Damage occurring objectively
unpredictable and irreparable even though the law enforcers has applied all
necessary measures and to the best of his/her ability;
c) Damage occurring in
circumstances where the law enforcer, in order to avert a threat actually and
directly threatening the public interest, the legitimate rights and interests
of the sufferer or another person, has no alternative but to take an act which
would cause lesser damage than the damage to be prevented, except for the case
prescribed in Clause 6 of Article 23 of this Law.
2. Apart from damage prescribed in
Clause 1 of this Article, in criminal procedures, the state shall not
compensate for damage caused in the following circumstances:
a) Damage occurs in cases where a
person faced with criminal prosecution is eligible for exemption from criminal
liability according to the provisions of the Criminal Code;
b) Damage caused due to the
sufferer’s making false declarations or providing other untruthful documents or
exhibits in order to plead guilty for other persons or to conceal the offenses;
c) Damaged caused owning to the
fact that the person who committed violation of law shows clear signs of
offense constitution, against whom criminal cases was instituted or who was
prosecuted in criminal cases instituted at the request of victims, but the
cases were terminated as the victims have withdrawn their requests for
institution of criminal cases;
d) Damage caused owning to the fact
that the person against whom criminal case was instituted or who was prosecuted
and tried strictly in accordance with legal documents effective at the time of
prosecution and trial but at the time when the judgment or decision take
effects new legal documents are promulgated and took effect after the date of
prosecution or trial he/she no longer bears criminal liability.
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4. In addition to the damage
prescribed in Clause 1 of this Article, in civil judgment enforcement, the
state shall not pay compensation for damage caused when the law enforcer has
applied judgment enforcement measures strictly according to request of the
party causing damage. The person who requests the executor to apply temporary
emergency measures improperly, causing damage to the accused or to the third
party, shall have to pay compensations to the victims according to the
provisions of the civil procedure legislation.
Chapter IV
COMPENSATION BODIES
Article 33.
Compensation bodies in administrative management
1. Central compensation bodies
include:
a) Ministries, ministerial-level
agencies, Governmental agencies shall act as compensation bodies in cases where
the law enforcers causing damage work under their direct management, except for
the case prescribed in Point b of this Clause;
b) General Departments, Departments
and other units that have the legal person status and separate accounts of
Ministries, ministerial-level agencies or Governmental agencies shall act as
compensation bodies in cases where the law enforcers causing damage work under
their direct management.
2. Compensation bodies of provinces
and central-affiliated cities (hereinafter referred to as provinces) include:
a) People’s Committees of provinces
shall act as compensation bodies in cases where the law enforcers causing
damage work under their direct management, except for the case prescribed in
Point b of this Clause;
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3. People’s Committees of districts
shall act as compensation bodies in cases where the law enforcers causing
damage work under their direct management.
4. People’s Committees of communes
shall act as compensation bodies in cases where the law enforcers causing
damage work under their direct management.
5. Authorities competent to provide
information as prescribed in the Law on information access.
6. Authorities competent to apply
necessary measures to protect denouncers as prescribed in the Law on
Denunciation.
7. Agencies issuing dismissal
decision as disciplinary actions to public employees.
8. Courts that have jurisdiction in
lawsuit settlement as prescribed in law on criminal procedures, civil
procedures, administrative procedures; courts that have jurisdiction in
applying administrative measures as prescribed in the Law on penalties for
administrative violations.
Article 34.
Investigative agencies and agencies tasked to conduct certain investigative
activities for compensation in criminal proceedings
An investigative agency or agency
tasked to conduct certain investigative activities shall act as a compensation
body in the following cases:
1. It issued a custody order for
emergencies without justifiable grounds as prescribed in the Criminal Procedure
Code and the person held in custody did not commit any illegal act; it issued
an arrest or custody order but then the competent authority issued decision on
release, cancellation of the custody orders, non-endorsement of the arrest
order or decision on extension of custody order as the person held in custody
or arrested did not commit any criminal act;
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3. The procuracy issued a decision
on return of case files for additional investigation and then investigation
body made additional investigation findings or new investigation findings for
prosecution but the procuracy issued a decision on suspension of case as an
offence did not occur or the act did not constitute the offence.
Article 35.
Procuracies settling compensation in criminal proceedings
A procuracy shall act as a
compensation body in any of the following cases:
1. It ratified an arrest order or
decision to extend the custody duration made by competent investigate agency or
agency tasked to conduct certain investigative activities but the arrested
person or person held in custody did not commit any illegal act;
2. It ratified a decision to
prosecute the accused or a detention order made by the investigation agency or
agency tasked to conduct certain investigative activities or issued a decision
to prosecute the accused, a detention order, or a decision to extend the
detention duration but then the competent authority confirmed that the offence
did not occur, the act did not constitute the offence, or the investigation period
expired without justifiable grounds to prove that the accused committed any
illegal act, except for the case prescribed in Clause 3 Article 34 of this Law;
or it returned the case files for additional investigation, but the
investigation body, according to investigation findings, issues a decision on
suspension of investigation as the commission of an offence did not occur, the
act did not constitute the offence, or the investigation period expired without
justifiable grounds to prove that the accused committed any illegal act;
3. It issued a decision to
prosecute the accused but the first-instance court declared that the defendant
was not guilty as he/she did not commit any criminal act or the act did not
constitute the offence and the first-instance judgment has taken legal effect;
4. The first-instance court
returned case files for additional investigation and later the competent agency
issued a decision on suspension of the investigation or case as the commission
of an offence did not occur, the act did not constitute the offence or the
investigation period expired without justifiable grounds to prove that the
accused committed any illegal act;
5. The first-instance court
returned case files for additional investigation and later declared that the
defendant is not guilty as he/she did not commit any criminal act or the act
did not constitute the offence and the first-instance judgment has taken legal
effect;
6. The appellate court upheld a
first-instance court judgment/ruling declaring that the defendant was not
guilty as the commission of an offence did not occur or the act did not
constitute the offence
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Article 36.
Courts settling compensation in criminal proceedings
1. A first-instance court shall act
as a compensation body in any of the following cases:
a) It declared that the defendant
was guilty but then the appellate court quashes the first-instance judgment,
declaring that the defendant is not guilty and terminate the case as the
commission of an offence did not occur or the act did not constitute the
offence;
b) It declared that the defendant
was guilty but later the appellate court quashes the first-instance judgment
for re-investigation, and then the defendant's investigation and case are
terminated as the commission of an offence did not occur or the act did not
constitute the offence or the investigation period expired without justifiable
grounds to prove that the accused committed any illegal act;
c) It declared that the defendant
was guilty but then the appellate court quashed the first-instance judgment for
retrial, and then declares that the defendant is not guilty as the commission
of an offence did not occur or the act did not constitute the offence;
d) It declared that the defendant
was guilty and the first-instance judgment has taken legal effect but later the
court conducting trial according to cassation or reopening procedures quashes
that judgment and terminates the case as the commission of an offence did not
occur or the act did not constitute the offence;
dd) It declared that the defendant
was guilty and the first-instance judgment has taken legal effect later the
court conducting trial according to cassation or reopening procedures quashes
that judgment for re-investigation as the commission of an offence did not
occur, or the act did not constitute the offence, or the investigation period
expired without justifiable grounds to prove that the accused committed any
illegal act;
e) It declared that the defendant
was guilty the first-instance judgment has taken legal effect but later the
court conducting trial according to cassation or reopening procedures quashes
that judgment for re-trial and then the defendant is declared not guilty as the
commission of an offence did not occur or the act did not constitute the offence.
2. An appellate court shall act as
a compensation body in any of the following cases:
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b) It declared that the defendant
was guilty, but later the court conducting trial according to cassation or
reopening procedures quashes the appellate judgment for re-investigation and
then the defendant's investigation and case is terminated as the commission of
an offence did not occur, or the act did not constitute the offence, or the
investigation period expired without justifiable grounds to prove that the
accused committed any illegal act;
c) It declared that the defendant
was guilty, but later the court conducting trial according to cassation or
reopening procedures quashes the appellate judgment for re-trial and then the
defendant is declared not guilty as the commission of an offence did not occur
or the act did not constitute the offence.
3. A superior people’s court or a
central military court that have jurisdiction to conduct trial according to
cassation or reopening procedures shall act as a compensation body in any of
the following cases:
a) The Council of Judges of the
Supreme People’s Court quashes the cassation or reopening ruling of the
Superior People’s Court or central military court which declared that the
defendant was guilty and terminate the case as the commission of an offence did
not occur or the act did not constitute the offence;
b) The Council of Judges of the
Supreme People’s Court quashes the cassation or reopening ruling of the
Superior People’s Court or central military court which declared that the
defendant was guilty for re-investigation and then the defendant's
investigation and case is terminated as the commission of an offence did not
occur, or the act did not constitute the offence, or the investigation period expired
without justifiable grounds to prove that the accused committed any illegal
act;
c) The Council of Judges of the
Supreme People’s Court quashes the cassation or reopening ruling of the
Superior People’s Court or central military court which declared that the
defendant was guilty for re-trial and then the defendant is declared not guilty
as the commission of an offence did not occur or the act did not constitute the
offence.
4. The Supreme People’s Court shall
act as a compensation body in any of the following cases:
a) The Council of Judges of the
Supreme People's Court quashes its cassation or reopening rulings which
declared that the defendant was guilty, or quashes a legally effective
judgment/decision of the inferior court, and declares that the defendant is
guilty as the commission of an offence did not occur or the act did not
constitute the offence;
b) The Council of Judges of the
Supreme People’s Court quashes its cassation or reopening ruling which declared
that the defendant was guilty, or quashes a legally effective judgment/decision
of the inferior court for re-investigation and then the defendant's
investigation and case is terminated as the commission of an offence did not
occur, or the act did not constitute the offence, or the investigation period
expired without justifiable grounds to prove that the accused committed any
illegal act;
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Article 37.
Courts settling compensation in civil procedures, administrative procedures
1. A court competent to issue
rulings on application of temporary emergency measures defined in Clauses 1, 2
and 3, Article 28 of this Law shall act as a compensation body.
2. A first-instance court shall act
as a compensation body if its legally effective first-instance judgments or
rulings defined in Clause 5 and Clause 6 Article 19 of this Law are quashed
according to cassation or reopening procedures.
3. An appellate court shall act as
a compensation body if its legally effective appellate judgments or rulings
defined in Clause 5 and Clause 6 Article 19 of this Law are quashed according
to cassation or reopening procedures.
4. A court conducting trial
according to cassation or reopening procedures shall act as a compensation body
if its legally effective cassation or reopening rulings defined in Clause 5 and
Clause 6 Article 19 of this Law are quashed according to cassation or reopening
procedures.
5. A court shall act as a
compensation body if its legally effective judgments or rulings defined in
Clause 5 and Clause 6 Article 19 of this Law are quashed by the Council of
Judges of the Supreme People’s Court according to special procedures, except
for the case prescribed in Clause 6 of this Article.
6. The Supreme People’s Court shall
act as a compensation body if the Council of Judges of the Supreme People’s
Court quashes its legally effective judgments or rulings or those of inferior
courts as defined in Clause 5 and Clause 6 Article 19 of this Law according to
special procedures and determine damages incurred by the Supreme People’s
Court.
7. Courts that have jurisdiction to
settle cases as prescribed in the Criminal Procedure Code, the Civil Procedure
Code.
Article 38.
Compensation bodies in criminal judgment enforcement
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2. Criminal enforcement agencies of
the People's Army prescribed in the Law on criminal judgment enforcement.
3. Agencies assigned certain duties
of criminal judgment enforcement prescribed in the Law on criminal judgment
enforcement.
4. Courts that have jurisdiction to
settle cases as prescribed in the Criminal Procedure Code, the Civil Procedure
Code.
Article 39.
Compensation bodies in civil judgment enforcement
1. Department of civil judgment
enforcement and Sub-department of civil judgment enforcement.
2. Enforcement authorities of
military zones and equivalent.
3. Courts that have jurisdiction to
settle cases as prescribed in the Criminal Procedure Code, the Civil Procedure
Code.
Article 40.
Determination of compensation bodies in some specific cases
1. In cases where the compensation
body is enforcer’s superior body, the compensation body in some specific cases
shall be determined as follows:
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b) In a case where multiple law
enforcers of multiple agencies jointly cause damage, the agency assuming the
prime responsibility shall act as a compensation body; in a case where it is
unable to reach a consensus on the compensation body, the competent
compensation-managing authority shall determine the compensation body;
c) At the time of handling
compensation claim, if the law enforcer causing damage has no longer worked at
his/her superior body at the time of causing the damage, such superior body
shall act as the compensation body;
d) In case of authorized or
mandated performance of official duties, the authorizing or mandating agency
shall act as a compensation body. If the authorized or mandated agency performs
official duties at variance with authorized or mandated contents, thus causing
damage, it shall act as a compensation body.
2. In case of settlement of a claim
in the course of criminal procedures or administrative procedures at a court,
the court handling the case shall act as a compensation body.
3. In cases where the claimant
simultaneously request the enforcer’s superior body and the court that has
jurisdiction to settle the claim, either the enforcer’s superior body or the
court shall act as the compensation body, whichever accepts the claim first.
Chapter V
PROCEDURES FOR SETTLEMENT OF COMPENSATION CLAIMS
Section 1.
SETTLEMENT OF COMPENSATION CLAIMS AT ENFORCER’S SUPERIOR BODY
Article 41.
Compensation claims
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a) Compensation claim form;
b) Document serving as ground for
claim, unless the suffer has not received or cannot have such document;
c) Identity papers of the sufferer;
d) Documents and evidence related
to the compensation claim (if any).
2. If the claimant is the
sufferer’s successor (or the successors' representative in case of multiple
successors) or the sufferer’s representative, apart from the documents
prescribed in Points a, b and d Clause 1 of this Article, the claim shall also
include the following:
a) Identity papers of sufferer’s
successor or representative;
b) A legitimate written
authorization in case of authorized representative;
c) If the sufferer dies testate,
the claimant has to provide the testament, if he/she otherwise dies intestate,
a legitimate document on inheritance right is required.
3. A compensation claim shall at
least contain:
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b) Date of compensation claim;
c) Damaging act of law enforcer;
d) The existence of the causal link
between the actual damage and damaging act of the law enforcer;
dd) The extent of damage,
calculation and the claimed compensation amount;
e) Request for provisional sums of
compensation funding (if any);
g) Request of document serving as
ground for claim to be sent to compensation body, which clarifies document’s
name and the address where the document could be collected if the claimant is
unable to collect such document;
h) Request for honor restoration
(if any);
i) Request for restoration of other
legitimate rights and interests (if any).
If the sufferer only requires honor
restoration, the compensation claim shall contain contents prescribed in Points
a, b, c, d, g and h of this Clause.
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If the compensation body has been
unidentifiable promptly, the claimant shall file the claim to Services of
Justice of province where the sufferer has been residing or headquartered.
Within 5 working days, Services of Justice shall determine the compensation
body, forward the claim to the compensation body and send a notice to the
claimant.
5. If the claimant files a claim in
person, all of documents and evidence prescribed in Points b, c, d Clause 1 and
Clause 2 of this Article shall be copies with originals for collation; if the
claimant file the claim by post, all of documents and evidence prescribed in
Points b, c, d Clause 1 and Clause 2 of this Article shall be certified true
copies as prescribed in law on authenticity.
Article 42.
Procedures for claim acceptance and processing
1. The compensation body shall
accept claim, keep records and issue an acceptance certificate to the claimant
if the claimants file the claim in person. If the claim is filed by post,
within 2 working days from the date on which the claim is received, the
compensation body shall send a notice of acceptance to the claimant.
2. Within 5 working days from the
date of receipt, the head of compensation body shall perform the tasks below:
a) Request the claimant to provide
additional document in case of inadequate claim as prescribed in Clause 1 and
Clause 2 Article 41 of this Law;
b) Request the competent regulatory
body or person to provide document serving as ground for claim as required by
the claimant or clarify such document if its text is ambiguous.
3. Within 5 working days from the
date on which the request of the head of compensation body is received as
prescribed in Clause 2 of this Article, the claimant shall provide
appropriately additional documents and the competent regulatory body or person
has to provide the document serving as ground for claim or clarify text of such
document. The period of force majeure events or objective hindrance prescribed
in the Civil Code shall not be included in the time limit prescribed in this
Clause.
Article 43.
Acceptance of claim and assignment of compensation person
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2. The compensation body may refuse
the claim upon occurrence of any of following circumstances:
a) The compensation claim does not
fall within its jurisdiction;
b) The period of prescription of
compensation claim expires;
c) The compensation claim does not
fall within the state compensation liability prescribed in Chapter II of this
Law;
d) The claimant is not entitled to
claim compensation as prescribed in Article 5 of this Law;
dd) The claim was not adequate as
prescribed in Article 41 of this Law but the claimant has failed to provide
additional documents within the time limit prescribed Clause 3 Article 42 of
this Law;
e) The compensation claim has not
been sent to the superior body's enforcer as prescribed in Point a Clause 1
Article 52 of this Law and has been accepted by a court that have jurisdiction
in accordance with civil procedures;
g) The compensation claim has been
accepted by a court that have jurisdiction as prescribed in Clause 1 Article 55
of this Law;
h) The compensation claim has been
settled by a legally effective judgment/decision.
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a) Within 2 working days from the
date of acceptance of claim, the compensation body must assign the compensation
person;
b) The compensation person has wide
professional experience in the area from which the compensation claim arises;
he/she has no rights and interests in respect of the case or no relationship
with the law enforcer causing damage or the sufferer as prescribed in the Civil
Code.
4. The acceptance or non-acceptance
of claim and assignment of compensation person must be written advice as to the
claimant and compensation-managing authority. If the claim is rejected, it
shall be returned with explanation in writing; in case of Point a Clause 2 of
this Article, the claimant shall be instructed to come to competent bodies for
settlement.
During the process of acceptance of
claim, upon occurrence of any of the circumstances prescribed in Clause 2 of
this Article, the compensation body shall suspend the case, delete the case’s
name in the acceptance record and return the claim to the claimant.
5. If the sufferer only requires
honor restoration, no decision on settlement of compensation shall be issued as
prescribed in this Section. The honor restoration shall be carried out as
prescribed in Section 3 of this Chapter.
Article 44.
Provisional sums of compensation funding
1. At the request of the claimant
prescribed in Point e Clause 3 Article 41 of this Law, the compensation body
shall provide provisional sums of compensation funding for:
a) Damage due to mental suffering
prescribed in Clauses 1, 2, 3, 4, and 6 Article 27 of this Law;
b) Other damage that are promptly
calculated without verification.
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a) As soon as practicable after
accepting the claim, the compensation person shall determine amount of damages
as prescribed in Clause 1 of this Article and send a request for provisional
sums of compensation funding and amount thereof to the head of compensation
body;
b) Within 5 working days from the
date on which the request is received, if estimated administrative management
funding allocated by competent authority still remains, the compensation body
must complete the allocation of provisional sum and award it to the claimant.
According to the provisional sum
awarded to the claimant, the compensation body shall request the competent
finance authority to provide additional fund equivalent to the provisional sum;
c) If estimated administrative
management funding allocated by competent authority runs out, within 2 working
days from the date on which the request is received, the head of compensation
body shall request the competent finance authority to provide additional fund
equivalent to the provisional sum to be awarded to the claimant.
3. The finance authority shall
provide funding for the compensation body as follows:
a) If the compensation body has
provided provisional sum for the claimant, within 7 working days from the date
on which the request for additional fund is received as prescribed in Point b
Clause 2 of this Article, the competent finance agency shall provide additional
fund for the compensation body;
b) If the compensation body has
submitted a request for provisional sum, within 7 working days from the date on
which the request is received as prescribed in Point c Clause 2 of this
Article, the competent finance agency shall provide additional fund for the
compensation body.
4. The head of compensation body
shall decide the provisional sum of compensation awarded to claimant provided
not exceeding 50% of damages prescribed in Clause 1 of this Article.
Article 45.
Damage verification
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2. Within 15 days from the date of
acceptance of claim, the compensation person must complete the damage
verification. For matters involving many complicated circumstances or to be
verified at different places, the verification time limit is 30 days from the
date of acceptance of claim.
The verification time limit may
prolong as agreed by the claimant and the compensation person but not longer
than 15 days from expiration date as prescribed in this Clause.
3. Within 3 working days from the
closing date of damage verification, the compensation person must complete the
report on damage verification as the basis for negotiation of compensation.
4. For matters involving many
complicated circumstances, the compensation body may request the representative
of compensation-managing authority, competent finance authority to participate
in the verification process.
5. Expenses associated with such
valuation and examination shall be covered by the state budget.
6. The Government shall provide on
guidelines for this Article.
Article 46.
Negotiations on compensation
1. Within 2 working days from the
date on which the report on damage verification is completed, the compensation
body shall initiate the negotiation of compensation. The negotiation must be
completed within 10 days from the beginning date of negotiation. If matters or
cases involve many complicated circumstances, the negotiation time limit may
prolong is 15 days
The negotiation time limit may
prolong as agreed by the claimant and the compensation person but not longer
than 10 days from expiration date as prescribed in this Clause.
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a) The claimant and the
compensation body are considered equal in the course of negotiation,
b) Democracy and opinions of
participants in the negotiation are respected;
c) Negotiation contents and results
in terms of damage to be compensated and amount of damages shall comply with
regulations of this Law.
3. Participants in negotiations:
a) Representative of compensation
body who presides over the negotiation;
b) Compensation person;
c) Claimant; his/her protector of
rights and legitimate interests prescribed in Clauses 1, 2, and 3 Article 5 of
this Law;
d) Representative of
compensation-managing authority
dd) Representative of procuracy
that has jurisdiction in case of compensation claim in criminal procedures;
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4. The negotiation shall be
convened at any of the following venues:
a) If the claimant is an
individual, the negotiation venue will be the headquarters of the People’s
Committee of commune where the claimant has been residing, unless otherwise
agreed by the parties;
b) If the claimant is an
organization, the negotiation venue will be the headquarters of the People’s
Committee of commune where the claimant has been headquartered, unless
otherwise agreed by the parties.
5. The negotiation contents shall
include:
a) Damage to be compensated;
b) Amount of damages;
c) Restoration of other legitimate
rights and interests (if any);
d) Methods of awarding damages;
dd) Other contents relating to
settlement of compensation claims.
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a) The claimant presents his/her
compensation claim and provides additional supporting documents and evidence
(if any);
b) The compensation person
announces report on damage verification;
c) The compensation person and the
claimant discusses as prescribed in Clause 5 of this Article;
d) The representative of
compensation body states opinions, the law enforcer causing damage present
opinions (if any); individuals and representatives of other organizations state
opinions at the request of the presiding person;
dd) The representative of finance
agency offers opinions about types of damage, extent of damage, and amount of
damages (if any);
e) Representative of
compensation-managing authority offers opinions.
7. Negotiations shall be recorded
in writing. If parties conduct multiple negotiations, each of negotiation must
be recorded in writing.
As soon as practicable after
finishing the negotiation, the compensation person must keep a record of
results. The record of results must specify main contents prescribed in Clause
5 of this Article, clarifying whether the negotiation is successful or
unsuccessful. The record must bear signature or fingerprint of claimant,
signatures of representatives of participants as prescribed in Clause 3 of this
Article and handed over to each participant of negotiation.
8. In case of successful
negotiation, the head of compensation body shall issue a decision on compensation
settlement as prescribed in Clause 1 Article 57 of this Law.
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Article 47.
Decision on compensation settlement
1. As soon as practicable after
receiving the record of successful negotiation, the head of compensation body
shall issue a decision on compensation settlement and award it to the claimant
at the end of the negotiation process.
If the claimant does not receive
the decision on compensation settlement, the compensation person shall make a
record of such refusal. The record must bear the signatures of representatives
of participants. The record must also clarify legal consequences of the refusal
of decision as prescribed in Point dd Clause 1 Article 51 of this Law. The
compensation body must send the record to the claimant within 5 working days
from the date on which it is made.
2. The decision on compensation
settlement shall take effect after 15 days from the date of awarding. A
decision on compensation settlement must at least contain the following
a) Full name and address of the
claimant;
b) Grounds for determination of the
state compensation liability;
c) Contents prescribed in Clause 5
Article 46 of this Law;
d) Provisional sum as prescribed
Article 44 of this Law (if any).
Article 48.
Cancellation of or amendments to decisions on compensation settlement
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a) One of grounds for determining
state compensation liability has no longer existed as prescribed in Clause 1
Article 7 of this Law;
b) The document serving as ground
for claim has been forged;
c) Documents prescribed in Point c,
Point d Clause 1 and Clause 2 Article 41 of this Law have been forged for the
purpose of compensation claim.
2. The consequences resulting from
the cancellation of decision on compensation as provided for in Clause 1 of
this Article shall be settled as follows:
a) If the damages have not yet been
paid to the sufferers, the compensation body shall issue a decision on
suspension of compensation settlement as prescribed in Article 51 of this Law
and recover the provisional sums of compensation (if any);
b) In cases where damages have been
paid to the sufferer in full, the compensation body shall have to recover
compensation amount according to law provisions;
c) Where the law enforcer causing
damage has already paid damages, the enforcer’s superior body shall have to
return the money amount already collected according to the provisions of
Article 69 of this Law;
d) To settle other consequences (if
any) according to the provisions of law.
3. The head of compensation body
shall issue a decision on cancellation of the decision on compensation
settlement for re-settlement within 2 working days from the date on which one
of circumstances is discovered:
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b) At the request of the claimant,
if the claimant fails to meet the conditions specified at Point b, Clause 3,
Article 43 of this Law or if the negotiation is improperly held in terms of
composition, contents, procedures as prescribed in Clauses 3, 5 and 6, Article
46 of this Law.
4. The head of the compensation
body shall issue a decision to amend the decision on settlement of compensation
within 2 working days as from the date of detecting the decision on settlement
of compensation with obvious errors in the spelling, about data due to mistake
or miscalculation.
5. Decisions on cancellation,
correction or supplementation of compensation decisions must be immediately
sent to the claimants, compensation-managing authority and other entities
involved.
Article 49.
Postponement of settlement of claims
1. The head of the compensation
body shall issue a decision to postpone the settlement within two working days
from the date on which the claimant requests the compensation body to postpone
the settlement of claim due to his/her serious sickness with the certification
of the health facility from the district level upwards or cannot participate
himself/herself in the process of claim settlement for other plausible reasons.
2. The time limit for postponement
of claim settlement shall be determined at the request of the claimant but
shall not exceed 30 days, unless the claimant is seriously ill and unable to
participate on his own in the process of claim settlement.
3. The decision on postponement of
a claim settlement must specify reasons, postponement period and be immediately
sent to the claimant, compensation-managing authority and other entities
involved. Upon the expiration of the time limit for postponement of the claim
settlement, the head of the compensation body shall issue a decision to
continue settling the compensation.
Article 50.
Suspension of claim settlement
1. The head of compensation body
shall issue a decision on suspension of the decision on compensation settlement
within 1 working day from the date on which one of circumstances is discovered:
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b) The claimant does not come twice
to the negotiating venue when the invitations have been accepted without
plausible reasons;
c) The claimant fails to sign or
press his finger-print to the minutes of the negotiation result;
d) Competent agency/person
reconsiders the document serving as ground for claim
2. The time limit for suspending
the settlement of claims shall be 30 days from the date of issuance of the
suspension decision under one of the grounds prescribed at Points a, b and c,
Clause 1 of this Article.
Within 5 working days after the
expiry of the suspension duration prescribed in this Clause, the claimant may
propose the continued settlement of compensation. The head of the compensation
body shall issue a decision to continue the settlement of compensation.
3. In case of suspension under the
provisions of Point d, Clause 1 of this Article, after receiving the written
review, if the document being re-examined remains the document serving as a
basis for claim, the head of compensation body issue a decision to continue the
settlement of compensation; in cases where the re-examined document is not the
document used as grounds for compensation, the head of the compensation body
shall issue a decision to termination of the settlement of compensation as
prescribed in Article 51 of this Law.
4. The suspension decision must
clearly state the reasons and duration of the suspension, the rights and
obligations of the claimants and the legal consequences of the suspension.
Decisions on suspension or
continued settlement of compensation must be immediately sent to the claimant,
compensation-managing authority and other entities involved.
Article 51.
Termination of claim settlement
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a) The claimant withdraws the claim
before the compensation body conducts the verification of the damage;
b) The sufferer dies without an
heir; the damaged organization has ceased to exist without an organization
inheriting rights and obligations;
c) Upon the expiration of the
suspension duration, the claimant does not request the continuation of the claim
as provided for in Clause 2, Article 50 of this Law or the request for further
settlement of the claim, but perform one of the acts specified at Points a, b
and c, Clause 1, Article 50 of this Law;
d) Issue a decision to cancel the
compensation decision in the cases specified in Clause 1, Article 48 of this
Law;
dd) Upon the expiry of the time
limit of 30 days from the date on which the written decision on non-receipt of
the compensation decision is made under Clause 1, Article 47 of this Law, the
claimant fails to receive the settlement decision.
2. The claimant has no right to
request the compensation body which is the enforcer’s superior body to
re-settle the claim after the suspension decision is issued, unless the
claimant demonstrates that the claim has been withdrawn due to deception or
coercion.
In the case specified at Point b,
Clause 1 of this Article, the restoration of honor is required in the written
request for compensation shall be carried out as provided for in Article 59 of
this Law.
3. Decisions on termination of
compensation must be immediately sent to the claimant, compensation-managing
authority and other entities involved.
4. In cases where the claimant has
been provided with provisional sums of compensation, the compensation body
shall have to recover the provisional sum upon the issuance of the decision to
termination of compensation settlement, unless otherwise provided for at Point
b, Clause 1 of this Article.
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Article 52.
Institution of lawsuits and procedures for settlement of claims at courts
1. Within three years from the date
of receipt of the document serving as a basis for claim, the claimant may
initiate a lawsuit requesting the curt to settle the claim in the following
circumstances:
a) The claimant has not yet
requested the enforcer’s superior body to settle the claim;
b) The claimant withdraws his/her
claim as provided for at Point a, Clause 1, Article 51 of this Law.
2. Within 15 days after receiving
the compensation decision as provided for in Article 47 of this Law, the
claimant disagrees with that decision or from the date of the minutes of the successful
negotiation as specified in Clause 7, Article 46 of this Law, if the enforcer’s
superior body fails to issue a decision to settle the compensation or from the
date the minutes of the unsuccessful negotiation as prescribed in Clause 7,
Article 46 of this Law, the claimant shall have the right to initiate a lawsuit
requesting the court to settle the claim.
3. If any force majeure event or
objective hindrance as provided for by the Civil Code prevents the claimant
from initiating the lawsuit on time, the duration of force majeure event or
objective hindrance shall not be included in the time limit for initiating a
lawsuit as provided for in Clauses 1 and 2 of this Article.
4. The claimant has no right to
initiate a lawsuit requesting the court to settle the claim in a case where the
decision on settlement of compensation specified in Article 47 of this Law
takes legal effect.
5. Procedures for settling claims
at courts shall comply with the provisions of this Section; in cases where this
Section does not prescribe, the provisions of the Civil Procedure Code shall
apply.
6. Any case which satisfies the
conditions for the application of reduced procedures in accordance with the
provisions of the Civil Procedure Code shall be carried out in accordance with
such reduced procedures.
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Article 53.
Determination of courts having jurisdiction to settle civil cases on claims
1. The People's Court of district
where the claimant has been residing or has worked or where the defendant is
headquartered at the own discretion of the claimant shall be the court
competent to hear compensation claim at the first instance if defendants are
the following agencies:
a) The agencies defined in Clauses
3 and 4, Article 33 of this Law;
b) The agencies defined in Clauses
5, 6 and 7, Article 33 of this Law at the district and commune levels;
c) Presiding agencies of districts,
enforcement authorities of districts.
2. The People's Court of province
where the claimant has been residing or has worked or where the enforcer’s
superior body is headquartered at the own discretion of the claimant shall be
the court competent to hear compensation claim at the first instance, except for
the case prescribed in Clause 1 of this Article.
Article 54.
Execution of court judgments or decisions on settlement of claims
1. The enforcer’s superior body
shall have to pay compensation to the claimant according to the legally
effective judgment/decisions of the court on settlement of claim.
2. Related entities must restore
other legitimate rights and interests for the sufferer according to the legally
effective judgment/decision of the court on settlement of claim.
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1. The settlement of criminal cases
or administrative cases with contents of claim shall comply with the provisions
of law on criminal procedures and administrative procedures.
The time for accepting a claim in
the course of criminal procedures or administrative procedures is the time when
the competent court accepts the claim.
2. The determination of damage to
be compensated in the course of criminal procedures or administrative procedures
shall comply with the provisions of this Law after competent courts determine
unlawful acts of law enforcer causing damage that fall within the scope of
state compensation liability.
3. If a compensation claim is filed
in the course of settlement of a criminal or administrative case, the court
judgment or ruling must also contain the following:
a) Damaging acts within the scope
of state compensation liability;
b) Damage, amount of damages,
restoration of honor (if any) and restoration of other legitimate rights and
interests (if any);
c) The agency shall have to pay
damages, restore honor (if any) and restore other legitimate rights and
interests (if any).
4. In cases where the claimants
disagree with the settlement of compensation in court judgment/decisions or the
court judgment/decision does not contain compensation settlement matter, they
may continue exercising the right to make a claim under due process.
5. The Supreme People's Court shall
guide the implementation of this Article.
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Article 56.
Form of honor restoration
1. The restoration of honor of a
sufferer in criminal procedures shall be conducted in the following forms:
a) Directly apologizing and
publicly rectifying at the place where the sufferer being individual has been
residing or where the sufferer being corporation has been headquartered;
b) Publishing public apology and
making public rectification.
2. The restoration of honor of
individuals who are sufferers in case of unlawful dismissal or application of
administrative measures to sending them to reformatory schools, correctional
facilities, detoxification centers are provided in the form of publication of
apology and public rectification.
Article 57.
Proactive restoration of honor
1. Within 15 days from the date on
which the document serving as ground for claim is issued or the
judgment/decision referred to in Article 55 of this Law becomes effective, the
enforcer’s superior body shall have to notify the sufferer of the honor
restoration by the state.
2. In a case where the sufferer
agrees with the notice, the enforcer’s superior body shall effect the
restoration of honor as prescribed in Articles 58 and 59 of this Law.
3. In a case where the sufferers
disagree with the notice, they shall make a specific proposal for such notice
as the basis for the enforcer’s superior body to effect the restoration of
honor.
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5. In a case where the sufferer
denies the right to restore honor as prescribed in this Law, he/she no longer
has the right to request the restoration of honor. The refusal must be
expressed in writing; if the sufferer denies the right to restore his/her honor
orally, the enforcer’s superior body shall make records thereon, clearly
stating the refusal of the right restore honor by the sufferer. The record must
be signed by or borne with finger-print of the sufferer.
6. In a case where the sufferers
dies, the enforcer’s superior body shall publish apology and make public
rectification as prescribed in Article 59 of this Law.
7. The Government shall provide on
guidelines for this Article.
Article 58.
Direct apology and public rectification
1. The meeting of direct apology
and public rectification specified at Point a, Clause 1, Article 56 of this Law
shall be held as follows:
a) Within 15 days after receiving
the written consent or request of the sufferer of the restoration of honor as
provided for in Article 41 or Article 57 of this Law, the head of enforcer’s
superior body shall have to directly hold a meeting of public apology and
rectification;
b) The participants in the meeting
of public apology and rectification are representatives of leaders of the
presiding agencies, other concerned agencies, organizations and individuals.
2. The Government shall provide on
guidelines for this Article.
Article 59.
Publication of apologies and public rectification
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a) Within 15 days after receiving
the written consent or request for restoration of honor sent by the sufferer as
provided for in Article 41 or Article 57 of this Law, the enforcer’s superior
body at the central level shall have to publish a paper on apology and public
rectification on a central newspaper and a local newspaper of administrative
division where the sufferer being individual has been residing or the sufferer
being corporation has been headquartered for 3 consecutive issues; post the
content of apology and public rectification on the website (if any) of the
enforcer’s superior body;
b) Within 15 days after receiving
the written consent or request for restoration of honor sent by the sufferer as
provided for in Article 41 or Article 57 of this Law, the enforcer’s superior
body at the central level shall have to publish a paper on apology and public
rectification on a newspaper of province where the sufferer being individual
has been residing or the sufferer being corporation has been headquartered for
3 consecutive issues; post the content of apology and public rectification on
the website (if any) of the enforcer’s superior body;
c) As soon as practicable after
publishing the apology and making public correction, the enforcer’s superior
body shall have to send such newspaper to the sufferer and the People's
Committee of commune where the sufferer being individual has been residing or
the sufferer being corporation has been headquartered to put it on bulletin
board at the headquarters.
2. The Government shall provide on
guidelines for this Article.
Chapter VI
COMPENSATION FUNDS AND PAYMENT PROCEDURES
Article 60.
Compensation funds
1. The State shall allocate a state
budget fund to fulfill the state's compensation liability. The compensation
funding includes:
a) Damages for the sufferer;
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2. If the compensation body is
allocated operational fund from the central budget, the compensation funding
shall be covered by the central budget.
3. If the compensation body is
allocated operational fund from the local budget, the compensation funding
shall be covered by the provincial budget.
4. The Ministry of Finance and the
Service of Finance shall have to promptly and adequately allocate compensation
funds.
Article 61.
Estimation of compensation funds
1. Annually, based on the preceding
year's actual compensations, expenses associated with asset valuation, damage
examination, the Ministry of Finance shall make budget estimates for
compensation for compensation bodies whose operational funds are allocated from
central government budget, send reports to the Government which then submit
them to the National Assembly for consideration as prescribed in law on state
budget.
2. Annually, based on the preceding
year's actual compensations, expenses associated with asset valuation, damage
examination, Departments of Finance shall make budget estimates for
compensation for compensation bodies whose operational funds are allocated from
local government budget, send reports to the People’s Committees of provinces
which then submit them to the People's Councils of provinces for consideration as
prescribed in law on state budget.
Article 62.
Allocation of funding for compensation and payment of damages
1. Within two working days from the
effective date of the compensation decision or the judgment or decision of the
court on the settlement of the claim, the enforcer’s superior body must send
the application for allocation of compensation fund to the competent financial
agency.
2. An application for allocation of
compensation fund, except for the case prescribed in Clause 3 of this Article,
shall include:
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b) The copy of document serving as
ground for claim;
c) The legally effective
compensation settlement judgment or decision of a competent agency.
3. An application for allocation of
compensation fund prescribed in Article 55 of this Law shall include:
a) The written request for
allocation of compensation funds, with full and specific details
on the sufferer, grounds for determining damages, amount of damages,
damages for each specific damage, and total amount of money proposed to pay the
damages;
b) The legally effective
compensation settlement judgment or decision of a competent court.
4. Within 5 working days after
receiving complete application specified in Clause 2 or Clause 3 of this
Article, the financial agency must complete the allocation of compensation fund
to the enforcer’s superior body.
Where there are clear grounds that
the application fails to meet the requirements specified in Clause 2 or 3 of
this Article or the amount of damages are not in accordance with law provisions,
the finance body shall coordinate with the compensation body to complete the
application, allocate compensation funds within 15 days after receiving the
application for allocation for compensation fund.
Where there are clear grounds that
the amount of damages in the court judgment/decision on settlement of
compensation prescribed in Clauses 1 and 2 of Article 52 or Article 55 of this
Law are not in accordance with the provisions of law, the financial agency
shall request the competent authority to resolve the dispute according to the
procedure.
5. Within two working days from the
date of receipt of the funding provided by the financial agency, the enforcer’s
superior body shall notify the claimant of the payment. Within two working days
from the date of receipt of the funding provided by the financial agency, the
enforcer’s superior body shall pay the damages.
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Article 63.
Settlement of compensation funds
1. After paying damages to the
sufferer, the enforcer’s superior body shall send papers and documents related
to the payment of damages to the finance agency that has allocated funding for
statement purpose in accordance with the law.
2. At the end of the budget year,
the Ministry of Finance and the Department of Finance shall make the statement
of compensation funding as prescribed in law on the state budget.
Chapter VII
REIMBURSEMENT LIABILITY
Article 64.
Reimbursement obligation of responsible law enforcers
1. Law enforcers who are at fault
in causing damage are obliged to reimburse to the state budget partly or wholly
the amount of damages already paid to the sufferers under decisions of competent
agencies.
2. Where multiple law enforcers
jointly have caused damage, such persons shall be obliged to pay
correspondingly to the extent of their faults and damages paid by the State.
Article 65.
Determination of refund rates and reduction of refund rates
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a) The degree of fault of law
enforcers;
b) Amount paid by the State.
2. If a law enforcer causes damage,
the refund shall be determined as follows:
a) If the law enforcer caused
damage with intentional fault and a judgment which states that he/she committed
a crime, he/she has to refund all the money already paid by the State to the
sufferer;
b) If the law enforcer caused
damage with intentional fault but not to the extent of being prosecuted for
penal liability, his/her 30 to 50 months’ pay rate shall be refunded at the
time the refund decision is issued but not exceeding 50% of the amount of
damages paid by the State;
c) If the law enforcer caused
damage with unintentional fault, his/her 3 to 5 months’ pay rate shall be
refunded at the time the refund decision is issued but not exceeding 50% of the
amount of damages paid by the State;
d) Where the 50% of the amount of
damages is less than the 30 months’ pay rate prescribed at Point b of this
Clause or less than 3 months’ pay rate prescribed at Point c of this Clause,
the law enforcer must pay at least 50% of the amount of damages paid by the
State.
3. In a case where multiple law
enforcers jointly cause damage, the reimbursement rate of each person shall be
determined correspondingly according to the provisions of Clause 2 of this
Article, but the total reimbursement shall not exceed the amount of damages
already paid by the State for the sufferer.
4. Each law enforcer shall be
entitled to reduced reimbursement when they fully meet the following
conditions:
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b) To fulfill all obligations in
the process of claim settlement and have repaid at least 50% of the amount to
be reimbursed;
c) He/she is economically
disadvantaged.
The head of the enforcer’s superior
body shall decide to reduce the reimbursement but not exceeding 30% of the
total amount to be reimbursed.
5. The Government shall provide on
guidelines for this Article.
Article 66.
Competence and procedures for determining the reimbursement liability
1. Within 10 days from the date on
which the damages are paid in full, the head of compensation body shall set up
the council to consider the reimbursement liability. In case the damage is
caused by multiple law enforcers from different agencies, such council shall be
participated by representatives of concerned agencies to determine the
reimbursement liability.
2. Within 20 days from the date of
establishment, the council shall consider the reimbursement liability to
complete the identification of law enforcers causing damage, their extents of
fault, reimbursement liability, the amount of each person's reimbursement and
written request to the head of the agency for payment of damages. In case of
complicated cases, the time limit may be extended but not exceeding 30 days.
3. On the basis of the
recommendation of the Council for consideration of reimbursement liability, the
head of compensation agency shall:
a) Issue a decision on
reimbursement to the law enforcer causing damage, except for the case
prescribed at Point b of this Clause;
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The head of enforcer’s superior
body shall issue a decision on reimbursement and take legal responsibility for
such decision.
4. The reimbursement decision must
be sent to the law enforcer liable for reimbursement, compensation-managing
authority and the agencies and organizations involved in the collection of
reimbursement.
5. The Government shall provide on
guidelines for this Article.
Article 67.
Decisions on reimbursement and decisions on reduction in reimbursement rates
1. Decisions on reimbursement and
decisions on reduction in reimbursement rates shall take effect from the date
of signing.
2. If a decision on reimbursement
or decision on reduction in reimbursement rates is inconsistent with the
provisions of Articles 65 and 66 of this Law, the compensation-managing
authority shall request the head of enforcer’s superior body to reconsider such
decision.
3. Based on the decision on
reimbursement, the decision on reduction in the reimbursement rates that
becomes legally effective, the enforcer’s superior body shall have to collect
the amount to be reimbursed and paid in full and promptly to the state budget
according to the provisions of law, except for the case prescribed in Article
70 of this Law.
Article 68.
Reimbursement
1. Reimbursement can be made once
or multiple times and must be specified in the reimbursement decision.
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3. If the law enforcer liable for
reimbursement is raising a child younger than 36 months of age or pregnant, the
reimbursement shall be postponed under the decision of the head of enforcer’s
superior body.
Article 69.
Handling reimbursed money, reimbursement liability if the document serving as
ground for claim no longer serves as a basis for claim
1. If a document used as ground for
claim is determined by the competent regulatory body no longer serve as ground
for claim of damages that have been repaid by law enforcer causing damage,
his/her superior body shall be responsible for repaying the sum of money that
he/she has repaid.
2. Where the head of enforcer’s
superior body has not yet issued the reimbursement decision, the determination
of reimbursement liability shall be suspended.
3. The Government shall provide on
guidelines for this Article.
Article 70.
Responsibility to collect reimbursements in cases where law enforcers transfer
to other agencies or organizations
1. The agency or organization which
has directly managed, utilized, or paid salaries to the law enforcer causing
damage shall have to collect reimbursements according to the reimbursement
decision.
2. The enforcer’s superior body, at
the time that the law enforcer causes the damage, shall request the agency or
organization which has directly managed, utilized, or paid salaries to the law
enforcer to reimbursements according to the reimbursement decision and pay them
to state budget as per the law.
Article 71.
Responsibility for collecting reimbursement in cases where the law enforcer
causing damage have retired or resigned
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2. If the law enforcer causing
damage has resigned without receiving his/her pension or working at another
agency or organization, the enforcer’s superior body shall, at the time that
the law enforcer causes the damage shall execute the reimbursement decision
according to the provisions of law.
Article 72.
Reimbursement liability in case of death of law enforcer causing damage
Where the law enforcer causing
damage dies, the reimbursement decision shall cease to be valid at his/her
death time.
Chapter VIII
RESPONSIBILITIES OF STATE AGENCIES IN STATE
COMPENSATION
Article 73.
State management responsibilities for compensation work
1. The Government shall perform the
consistent state management of compensation work in administrative management,
procedures and judgment enforcement nationwide.
2. The Ministry of Justice is the
central agency assisting the Government in performing state management of state
compensation and has the following tasks and powers:
a) Formulate strategies and
policies on state compensation;
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c) Guide and provide training
courses in professional skills and practices of state compensation; response to
problems in the application of the law on compensation liability of the state;
d) Determine compensation bodies as
prescribed in Point a and Point b Clause 1 Article 40 of this Law;
dd) Assist sufferers in going
through procedures for compensation claims;
e) Monitor and urge the state compensation;
take charge and cooperate with concerned agencies in inspecting and examining
the state compensation work; settle complaints, denunciations and take actions
against violations in state compensation according to the provisions of law;
g) Annually, release statistics on
the implementation of the state compensation work and send reports to the
Government according to regulations;
h) Request the compensation
agencies to send reports on the settlement of claims, fulfill reimbursement
liability and take disciplinary actions against law enforcers in case of
necessity;
i) Carry out state management of
international cooperation in state compensation;
k) Build and manage a database on
state compensation;
l) Propose the competent bodies to
take actions against violations in settling the compensation and performance of
the reimbursement liability as per the law;
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n) Assist the Government in
cooperating with the Supreme People’s Court, the Supreme People’s Procuracy in
managing state compensation work in procedures;
o) Other tasks and powers as per
the law.
3. People's Committees of provinces
shall perform the state management of state compensation in the administrative
management, proceeding and judgment execution in their respective
administrative divisions and have the following tasks and powers:
a) Guide and provide training
courses in professional skills and practices of state compensation;
b) Determine compensation bodies as
prescribed in Point a and Point b Clause 1 Article 40 of this Law;
c) Guide the suffers to carry out
the procedures for claiming compensation within their respective administrative
divisions;
d) Monitor, urge and inspect the
state compensation; inspect, settle complaints, denunciations, take actions
against violations in state compensation;
dd) Annually, take charge and
cooperate with concerned local agencies and organizations in releasing
statistics on the implementation of the state compensation work and report it
to the Ministry of Justice according to regulations;
e) Request the compensation
agencies to send reports on the settlement of claims, fulfill reimbursement
liability and take disciplinary actions against law enforcers in case of
necessity;
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h) Propose the competent persons to
protest the court judgments or decisions with compensation contents as provided
for by law; request the head of the enforcer’s superior body to cancel the
decision on settlement of compensation in the case of one of the grounds
specified in Clause 1 and Point a of Clause 3, Article 48 of this Law without
cancellation decision;
i) Other tasks and powers as per
the law.
4. Departments of Justice shall
assist the People's Committees of provinces in performing the state management
over the state compensation work in their respective administrative divisions.
Article 74.
Responsibilities of the Supreme People's Court and the Supreme People's
Procuracy
The Supreme People's Court and the
Supreme People's Procuracy shall, within the scope of their functions, duties
and powers, have the following responsibilities:
1. Cooperate with the Government in
performing the state management of state compensation work prescribed in Clause
2, Article 73 of this Law;
2. Examine, inspect and settle
complaints and denunciations related to the state compensation work according
to the provisions of law;
3. Direct the compensation bodies
to settle claims, to determine the reimbursement liability, to implement
decisions on the reimbursement, to take disciplinary actions it according to
its competence;
4. Handle and direct the actions
against violations in the settlement of compensation and performance of
reimbursement liability;
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6. Direct People’s Courts, the
People’s Procuracies to cooperate with state management agencies on state
compensation in state compensation work;
7. Respond to and implement
recommendations of compensation-managing authority;
8. Perform other tasks and powers
as per the law.
Article 75.
Responsibilities of Ministries, ministerial-level agencies and Governmental
agencies
Ministries, ministerial-level
agencies and Governmental agencies shall, within the scope of their respective
functions, tasks and powers, have the following responsibilities:
1. Cooperate with the Ministry of
Justice in performing the state management of state compensation work
prescribed in Clause 2, Article 73 of this Law;
2. Examine, inspect and settle
complaints and denunciations related to the state compensation work according
to the provisions of law;
3. Direct the compensation bodies
to settle claims, to determine the reimbursement liability, to implement
decisions on the reimbursement, to take disciplinary actions it according to
its competence;
4. Handle and direct the actions
against violations in the settlement of compensation and performance of
reimbursement liability;
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6. Respond, to make recommendations
of compensation-managing authority;
7. Perform other tasks and powers
as per the law.
Chapter IX
IMPLEMENTATION PROVISIONS
Article 76.
Court costs, fees, other charges and taxes in the course of compensation
settlement
1. Compensation bodies shall not
collect court fees, charges and other charges for the claim for compensation
within the scope of the state compensation liability as provided for by this
Law.
2. The sufferers are not liable for
personal income tax and corporate income tax on their received damages.
Article 77.
Entry in force
1. This Law comes into force as of
July 1, 2018.
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Article 78.
Transitional provisions
1. In a case where a claim has been
accepted by the compensation body before the time this Law takes effect but it
has not yet been settled or being settled, the provisions of the Law on State
Compensation Liability No. 35/2009 / QH12 shall prevail.
2. Since the effective date of this
Law, the cases that are entitled to compensation in accordance with the Law on
State Compensation Liability No. 35/2009/QH12 and responsive periods of
prescription have not expired in accordance with the Law on State Compensation
Liability No. 35/2009/QH12 but have not yet requested the state to compensate
or have requested but have not yet been accepted for settlement, the provisions
of this Law shall prevail.
This Law is passed on June 20,
2017, by the 14th National Assembly of the Socialist Republic of Vietnam at its
3rd session.
PRESIDENT
OF NATIONAL ASSEMBLY
Nguyen Thi Kim Ngan