THE
GOVERNMENT
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|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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|
No.
16/2010/ND-CP
|
Hanoi,
March 03, 2010
|
DECREE
DETAILING AND GUIDING A NUMBER OF ARTICLES OF THE LAW ON
STATE COMPENSATION LIABILITY
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the June 18, 2009 Law on State Compensation Liability;
At the proposal of the Minister of Justice,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.
Scope of regulation
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Article 2.
Determination of state compensation liability
1. The State shall compensate
only for damage referred to in the Law on State Compensation Liability when
having sufficient grounds specified in Clauses 1 and 2, Article 6 of the Law on
State Compensation Liability.
2. The State will not compensate
for damage caused in force majeure events or emergency circumstances in the
following cases:
a/ Objective, unforeseeable and
insurmountable damage which public-duty performers have applied all necessary
measures within their capabilities to prevent;
b/ Damage caused in case a
public-duty performer who, for the purpose of avoiding a practical danger which
directly threatens the interests of the State or a collective or the lawful
rights and interests of his/her own or others, cannot but take an act causing a
damage minor than the damage which needs to be prevented;
c/ Damage caused in force
majeure events or other emergency circumstances as prescribed by law.
Chapter II
COMPENSATION SETTLEMENT
AT COMPENSATION-LIABLE AGENCIES
Article 3.
Compensation-liable agencies in administrative management
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1. In case the damage-causing
public-duty performer is a cadre or civil servant of a ministry,
ministerial-level agency or government-attached agency, this ministry or agency
shall pay compensation, except the case specified in Clause 2 of this Article.
2. In case the damage-causing
public-duty performer is a civil servant of a general department or
directorate, department or another unit with the legal person status and its
own account under a ministry, ministerial-level agency or government-attached
agency, this general department or directorate, department or unit shall pay
compensation.
3. In case the damage-causing public-duty
performer is a staff member of a provincial-level People's Committee, the
provincial-level People's Committee shall pay compensation, except the case
specified in Clause 4 of this Article.
4. In case the damage-causing
public-duty performer is managed by a specialized agency under a
provincial-level People's Committee under the Government's Decree No. 13/2008/
ND-CP of February 4, 2008, providing for the organization of specialized
agencies under provincial-level People's Committees and other agencies directly
managed by provincial-level People's Committees, such specialized agency shall
pay compensation.
5. In case the damage-causing
public-duty performer is a staff member of a district-level People's Committee
and directly managed by a specialized agency under the district-level People's
Committee, the district-level People's Committee shall pay compensation.
6. In case the damage-causing
public-duty performer is a staff member of a commune-level People's Committee
or a commune-level cadre or civil servant, the commune-level People's Committee
shall pay compensation.
7. Other state agencies shall
pay compensation under decisions of competent compensation state management
agencies under this Decree.
Article 4.
Compensation-liable agencies in civil judgment enforcement
Compensation-liable agencies in
civil judgment enforcement referred to in Clause 2, Article 40 of the Law on
State Compensation Liability shall be determined as follows:
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2. In case the damage-causing
public-duty performer is a civil servant of a provincial-level Civil Judgment
Enforcement Department or the Judgment Enforcement Department of the Ministry
of National Defense, such Department shall pay compensation.
3. In case the damage-causing
public-duty performer is a civil servant of a district-level Civil Judgment Enforcement
Division or the military zone-level Judgment Enforcement Division, such
Division shall pay compensation.
Article 5.
Determination of compensation-liable agencies
1. Determination of
compensation-liable agencies in administrative management and judgment
enforcement
The determination of
compensation-liable agencies in administrative management and judgment
enforcement complies with Articles 14 and 40 of the Law on State Compensation
Liability and Articles 3 and 4 of this Decree.
In case damage sufferers cannot
identify or no agreement can be reached on compensation-liable agencies, they
may request competent compensation state management agencies defined in Chapter
IV of this Decree to determine compensation-liable agencies according to the
following procedures:
a/ When a damage sufferer cannot
identify the compensation-liable agency, within 5 working days after receiving
the damage sufferer's written request, the compensation state management agency
shall issue a document identifying the compensation-liable agency;
b/ If no agreement can be
reached on the compensation-liable agency, the time limit for issuing a
document identifying the compensation-liable agency may be extended but must
not exceed 15 days from the date of receipt of a written request from the
damage sufferer. In this case, the compensation-liable agency shall be
determined as follows:
- At the request of the damage
sufferer, the compensation state management agency shall assume the prime
responsibility for, and coordinate with agencies involved in causing the damage
in. identifying the compensation-liable agency;
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c/ A document identifying the
compensation-liable agency must be sent immediately to the damage sufferer and
the compensation-liable agency for compliance.
2. Identification of
compensation-liable agencies in legal proceedings
a/ The identification of
compensation-liable agencies in legal proceedings complies with Articles 29
thru 33 of the Law on State Compensation Liability.
b/ In case damage sufferers
cannot identify or no agreement can be reached on compensation-liable agencies,
they may request competent agencies to identify compensation-liable agencies
under the guidance of the Supreme People's Court, the Supreme People's
Procuracy, the Ministry of Public Security, the Ministry of National Defense
and the Ministry of Justice.
Article 6.
Tasks and powers of heads of compensation-liable agencies in the process of
compensation settlement
Heads of compensation-liable
agencies shall take responsibility before law for compensation settlement and
have the following tasks and powers:
1. To organize compensation
settlement according to the procedures specified in Article 9 of this Decree;
2. To appoint their
representatives to settle compensation;
3. To guide and direct their
representatives to settle compensation under law;
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5. To supply compensation
settlement-related decisions to public-duty performers who have caused the
damage;
6. To perform other tasks and
exercise other powers provided for by law.
Article 7.
Appointment of representatives to settle compensation
1. Right after accepting a
compensation claim, the head of the compensation-liable agency shall issue a
decision appointing a representative to settle compensation (below referred to
as the representative).
In case the head of an agency is
the public-duty performer who has caused the damage or the spouse, paternal
grandfather, paternal grandmother, maternal grandfather, maternal grandfather,
blood father, adoptive father, blood mother or adoptive mother (of spouse),
offspring, adopted child or sibling (of spouse), paternal grandchild or
maternal grandchild of the public-duty performer who has caused the damage or
of the damage sufferer (below collectively referred to as the related person),
the leadership of such agency shall discuss and agree to appoint a
representative of the leadership to take responsibility for compensation
settlement.
In case the compensation-liable
agency operates under the collective regime, the agency's collective shall
decide to appoint its representative.
2. The representative must fully
satisfy the following conditions:
a/ Being a leading official of
the divisional, equivalent or higher rank;
b/ Having work experience in the
branch or domain in which the compensation liability arises;
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Article 8.
Tasks and powers of the representative
The representative shall take responsibility
before the head of the compensation-liable agency for compensation settlement
and has the following tasks and powers:
1. To verify the damage under
Article 18 of the Law on State Compensation Liability;
2. To negotiate with the damage
sufferer about compensation settlement under Article 19 of the Law on State
Compensation Liability;
3. To report to the head of
his/her agency on damage verification and negotiation results;
4. To draft decisions on
compensation settlement;
5. To perform other tasks
related to compensation settlement as assigned by the head of his/her agency.
Article 9.
Procedures for compensation settlement at compensation-liable agencies
1. Within 5 working days after
accepting a compensation claim, the compensation-liable agency shall verify the
damage as a ground for determining the compensation amount under Article 18 of
the Law on State Compensation Liability.
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3. Within 3 working days after
finishing the negotiation, the compensation-liable agency shall finalize a
draft decision on compensation settlement and may send, when necessary, it to
concerned agencies for opinion.
4. Based on damage verification
and negotiation results and opinions of concerned agencies (if any), the
compensation-liable agency shall issue a compensation settlement decision under
Article 20 of the Law on State Compensation Liability and take responsibility
before law for its decision.
5. As soon as a compensation
settlement decision takes effect, the compensation-liable agency shall carry
out procedures for allocating and paying the compensation amount under Article
54 of the Law on State Compensation Liability.
Article 10.
Handover of compensation settlement decisions to damage sufferers
1. A compensation settlement
decision shall be handed to the damage sufferer by:
a/ A representative of the
compensation-liable agency;
b/ A representative of the
commune-level People's Committee of the locality where the damage-suffering
individual resides or the damage-suffering organization is headquartered, in
case this decision is handed through the commune-level People's Committee; or,
c/ Another person as provided
for by law.
2. Procedures for handing a
compensation settlement decision
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b/ If the damage sufferer is
absent, the compensation settlement decision may be handed to his/her relative
with full civil act capacity who resides together with him/her. This relative
shall sign the record or book on delivery and receipt of compensation
settlement decisions. The date of signing is the date the sufferer receives the
compensation settlement decision.
If the damage sufferer has no
relative who has full civil act capacity and resides together with him/her or
this relative refuses to receive on his/her behalf the compensation settlement
decision, this decision may be handed though the commune-level People's
Committee of the locality where the sufferer resides.
In case the compensation
settlement decision is handed through another person, such handover must be
made in a record stating the damage sufferer's absence, the person to whom the
decision is handed; reason for and date and time of handover; the relationship
between the on-behalf recipient of the decision and the sufferer; and the
commitment to hand the decision directly to the sufferer. Such record must bear
the signatures of the person agreeing to hand the decision, the person handing
the decision and the witness.
3. If the damage sufferer is
absent while the time of his/her return or his/her address is unknown, the
person handing the compensation settlement decision shall make a record of
failure to hand the decision, which must bear the signature of the provider of
information on the damage sufferer.
4. If the damage sufferer
refuses to receive the compensation settlement decision, the decision-handing
person shall make a record stating the reason for refusal and have it certified
by the head of the population group or the commune-level People's Committee or
police division.
Article 11.
Procedures for retuning assets
In the process of compensation
settlement, if having grounds for returning assets under Article 50 of the Law
on State Compensation Liability, the compensation-liable agency shall return
assets according to the following procedures:
1. Within 5 working days from
the date of annulment of a decision on asset seizure, temporary detention,
distraint or confiscation, the agency which has issued this decision shall
notify the damage sufferer of the return of his/her assets. Such notice must
indicate the place and time of returning assets.
2. The return of assets shall be
conducted at the head office of the agency which has issued the decision on
asset seizure, temporary detention, distraint or confiscation or in the place
where the assets are preserved.
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3. When returning assets, a
civil servant who is assigned to return assets shall request the damage
sufferer or the person authorized by the damage sufferer to receive assets to
produce papers evidencing that he/she is the person having his/her assets
seized, temporarily detained, distrained or confiscated or is the person
authorized by the former.
4. A civil servant assigned to
return assets shall request the asset recipient to check the quantity, volume
and other characteristics of assets to the witness of the keeper of the
warehouse where assets are preserved.
5. The return of assets must be
made in a written record signed by the asset recipient, the representative of
the agency which has issued the decision on asset seizure, temporary detention,
distraint or confiscation, the civil servant assigned to return assets and the
keeper of the warehouse where assets are preserved.
Article 12.
Responsibility to report on compensation settlement
1. In the process of
compensation settlement, the compensation-liable agency in administrative
management and judgment enforcement shall report to the immediate superior
state agency on:
a/ Acceptance of compensation
claims;
b/ Issuance of compensation
settlement decisions;
c/ The damage sufferer's
initiation of a lawsuit to request the court to settle compensation;
d/ Carrying out of compensation
payment procedures.
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2. Compensation-liable agencies
which are ministries, ministerial-level agencies, government-attached agencies
or provincial-level People's Committees shall report on compensation settlement
under Clause 1 of this Article to the Ministry of Justice.
3. Compensation-liable agencies
in legal proceedings shall report on compensation settlement to competent state
agencies under the guidance of the Supreme People's Court, the Supreme People's
Procuracy, the Ministry of Public Security, the Ministry of National Defense
and the Ministry of Justice.
4. In addition to the tasks
defined in Clauses 1. 2 and 3 of this Article, compensation-liable agencies
shall, at the request of competent compensation state management agencies,
promptly report on compensation settlement to meet the requirements of state
management of compensation work.
Chapter
III
REIMBURSEMENT LIABILITY
OF PUBLIC-DUTY PERFORMERS
Article 13.
Setting up of a Council for considering the reimbursement liability
1. Right after completing the
compensation payment, the head of the compensation-liable agency shall issue a
decision to set up a Council for considering the reimbursement liability (below
referred to as the Council) under Clause 1, Article 58 of the Law on State
Compensation Liability.
2. This Council is composed of:
a/ A leader of the
compensation-liable agency as its chairman;
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c/ The head of the unit directly
managing the public-duty performer who has caused the damage;
d/ A person in charge of
finance-accounting affairs of the compensation-liable agency;
e/ Some experts in relevant
economic, technical and legal matters.
In case many public-duty
performers of different agencies jointly cause the damage, representatives of
the leaderships of these agencies shall join the Council.
Council members may not be the
related persons of public-duty performers who have caused damage or of damage
sufferers under Clause 1, Article 7 of this Decree.
Article 14.
Tasks and powers of the Council
1. The Council has the following
tasks and powers:
2. To consider and assess the extent
of damage and fault of the public-duty performer who has caused the damage;
3. To determine financial
conditions of the public-duty performer who has caused the damage;
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5. The Council shall
automatically disband after fulfilling its tasks.
Article 15.
Working methods of the Council
1. The Council shall meet only
when two-thirds or more of its members are present.
2. The Council shall work on the
principle of collective discussion and majority vote-based decision. In the
process of discussion and decision. Council members must show objectivity and
democracy and observe law.
3. The proposition of
to-be-reimbursed amounts and reimbursement methods shall be made by casting
secret ballots and decided on the principle of vote of majority of total
Council members attending the meeting.
In case the numbers of votes for
and votes against are equal, the to-be-reimbursed amount and reimbursement
method shall be decided by the Council Chairman.
4. Minutes of Council meetings
must be considered and approved by the Council and signed by the Council
Chairman.
5. When necessary, the Council
may invite the public-duty performer who has caused the damage to attend its
meeting.
Article 16.
Determination of to-be-reimbursed amounts
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1. In case a public-duty
performer intentionally causes the damage but is not subject to penal liability
examination, the compensation- liable agency shall, based on the extent of
damage caused and his/her financial conditions, decide to ask him/her to
reimburse an amount not exceeding his/her 36 months' salary at the time of
decision on the reimbursement.
In case a public-duty performer
intentionally causes the damage and is subject to penal liability examination
for his/her illegal act causing such damage, he/she shall perform the
reimbursement liability under Article 18 of this Decree.
2. If a public-duty performer
unintentionally causes damage, the compensation-liable agency shall, based on
the extent of damage caused and his/her financial conditions, decide to ask
him/ her to reimburse an amount not exceeding his/ her 3 months' salary at the
time of decision on reimbursement, except the case specified in Clause 2,
Article 56 of the Law on State Compensation Liability.
Article 17.
Issuance of reimbursement decisions
1. Based on the Council's
proposal, competent persons defined in Article 59 of the Law on State
Compensation Liability shall issue reimbursement decisions.
2. In case the person competent
to issue reimbursement decisions holds opinions divergent from the Council's
proposal, he/she may make decision and take responsibility before law for such
decision.
Article 18.
Determination of the reimbursement liability of public-duty performers subject
to penal liability examination
1. A public-duty performer who
intentionally causes the damage and is subject to penal liability examination
for his/her illegal act causing such damage shall reimburse the whole amount
already compensated by the State to the damage sufferer under a ruling of the court
competent to settle criminal cases.
2. The compensation-liable
agency may request the court to determine the compensation or reimbursement
liability of the accused being the public-duty performer who has caused the
damage under Article 28 of the Criminal Procedure Code for reimbursing the
amount already compensated by the State to the damage sufferer.
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1. Persons with reimbursement
liability shall comply with regulations on the time limit, amount and method of
reimbursement indicated in the reimbursement decision.
2. In case the reimbursement
liability has been determined under Clause 1, Article 18 of this Decree, civil
judgment enforcement procedures shall be carried out for collecting amounts to
be reimbursed.
3. Compensation-liable agencies
shall fully and promptly collect and remit the whole reimbursed amounts into
the state budget.
Article 20.
Handling of public-duty performers who deliberately fail to perform the
reimbursement liability
1. The person with reimbursement
liability who has been notified thrice by the compensation-liable agency of
his/her reimbursement obligation but deliberately fails to perform this
obligation shall be disciplined under law.
2. If the person with
reimbursement liability has moved to another agency within the state apparatus,
such agency shall urge him/her to perform the reimbursement obligation and
decide on handling measures under Clause 1 of this Article.
3. If the person with reimbursement
liability no longer works in a state agency, the compensation-liable agency
shall take measures to recover the reimbursed amount under law.
Chapter IV
STATE MANAGEMENT OF
COMPENSATION WORK
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1. Promulgating according to
competence or submitting to competent state agencies for amendment,
supplementation or promulgation legal documents on state compensation
liability.
2. Disseminating and propagating
the Law on State Compensation Liability and guiding documents of competent
state agencies.
3. Guiding compensation-liable
agencies to settle compensation.
4. Providing compensation
settlement skill training for compensation settlement officers.
5. Identifying
compensation-liable agencies when so requested by damage sufferers or no
agreement can be reached on compensation-liable agencies.
6. Monitoring, examining and
inspecting the compensation settlement.
7. Monitoring and urging the
payment of compensations and performance of the reimbursement liability.
8. Settling complaints and
denunciations and handling violations of the law on state compensation
liability.
9. Making statistics of,
reviewing and evaluating the performance of state compensation liability.
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1. To assist the Government in
performing the unified state management of compensation work in administrative
management and judgment enforcement, and have the following tasks and powers:
a/ To promulgate according to
its competence or submit to the Government for amendment, supplementation or
promulgation legal documents on state compensation liability;
b/ To provide professional
guidance on compensation settlement;
c/ To settle problems related to
the implementation of the law on state compensation liability:
d/ To identify
compensation-liable agencies when so requested by damage sufferers or no
agreement can be reached on compensation liability among ministries,
ministerial-level agencies and provincial-level People's Committees according
to the procedures specified at Point b. Clause 1, Article 5 of this Decree;
e/ To monitor, examine, inspect,
and handle violations of the law on state compensation liability nationwide;
f/ To promptly detect in the
course of performing the state management of compensation work weaknesses and
limitations concerning the working style, qualifications and experience of
cadres and civil servants in order to propose handling measures to competent
state agencies;
g/ To biannually and annually
make statistics of, review and evaluate compensation settlement nationwide and
report implementation results to the Government.
2. To coordinate with competent
state agencies in performing the state management of compensation work in legal
proceedings, and have the following tasks and powers:
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b/ To perform the state
management of compensation work in legal proceedings under law;
c/ To annually review
compensation work in legal proceedings and report implementation results to the
Government and competent state agencies.
3. Within the ambit of its functions,
tasks and powers, to perform the state management of compensation work under
Clauses 1, 2,3,4,6,7 and 8, Article 21 and Point a, Clause 1, Article 23, of
this Decree.
Article 23.
Responsibilities of ministries and ministerial-level agencies
1. Ministries and
ministerial-level agencies shall, within the ambit of their functions, tasks
and powers, perform the state management of compensation work under Clauses 1,
2,3,4, 6,7 and 8, Article 21 of this Decree, and have the following tasks and
powers:
a/ To identify
compensation-liable agencies when so requested by damage sufferers or no
agreement can be reached on compensation liability among agencies under their
management according to the procedures specified at Point b, Clause 1, Article
5 of this Decree;
b/ To coordinate with the
Ministry of Justice in performing the state management of compensation work;
c/ To biannually and annually
make statistics of, review and evaluate compensation work under their
management, then submit such to the Ministry of Justice for summarization and
reporting to the Government.
2. Legal departments of
ministries and ministerial-level agencies shall advise and assist their
ministers and heads in performing the state management of compensation work
under this Article.
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1. Provincial-level People's
Committees shall perform the state management of compensation work in their
localities and have the following tasks and powers:
a/ Within the ambit of their functions,
tasks and powers, to perform the state management of compensation work under
Clauses 2, 3, 4, 6, 7 and 8, Article 21 of this Decree;
b/ To determine
compensation-liable agencies when so requested by damage sufferers or no
agreement can be reached on compensation liability among specialized agencies
under provincial-level People's Committees and district-level People's
Committees in localities under their management according to the procedures
specified at Point b, Clause 1. Article 5 of this Decree;
c/ To coordinate with the
Ministry of Justice in performing the state management of compensation work;
d/ To biannually and annually
make statistics of, review and evaluate compensation work under their
management, then submit such to the Ministry of Justice for summarization and
reporting to the Government.
2. Provincial-level Justice
Departments shall advise and assist provincial-level People's Committees in
performing the state management of compensation work in their localities under
this Article.
Article 25.
Responsibilities of specialized agencies under provincial-level People's
Committees
1. To monitor, urge and examine
compensation settlement within their responsibilities.
2. To coordinate with
provincial-level Justice Departments in advising and assisting provincial-level
People's Committees to perform the state management of compensation work in
localities.
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Article 26.
Responsibilities of district-level People's Committees
District-level People's
Committees shall, within the ambit of their functions, tasks and powers,
perform the state management of compensation work under Clauses 2, 3, 6, 7 and
8, Article 21 of this Decree, and have the following tasks and powers:
1. To identify
compensation-liable agencies when so requested by damage sufferers or no agreement
can be reached on compensation liability among units directly managed by
district-level People's Committees and commune-level People's Committees in
localities under their management according to the procedures specified at
Point b. Clause 1, Article 5 of this Decree;
2. To coordinate with
provincial-level Justice Departments in performing the state management of
compensation work in localities;
3. To biannually and annually
make statistics of, review and evaluate compensation settlement under their management,
then submit such to provincial-level Justice Departments for summarization and
reporting to provincial-level People's Committees.
Article 27.
Allocation of funds for compensation-related state management and compensation
settlement
1. Funds used to compensate for
damage within the scope of state compensation liability shall be covered by
central and local budgets under Chapter VI of the Law on State Compensation
Liability.
2. Funds for state management
work and compensation settlement shall be covered by the state budget and
included in estimates of expenditures for operations of state compensation
management and settlement agencies and organizations under the state budget
law.
3. The Ministry of Finance shall
assume the prime responsibility for, and coordinate with the Ministry of
Justice in, guiding the estimation, management and use of state budget funds
for compensation-related state management and compensation settlement.
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IMPLEMENTATION PROVISIONS
Article 28.
Effect and transitional provisions
1. This Decree takes effect on
April 20, 2010.
2. The provisions on the
reimbursement liability of public-duty performers under Chapter III of this
Decree will not apply to the reimbursement settlement in cases in which compensation
settlement procedures are carried out under the Government's Decree No. 47/CP
of May 3, 1997, on compensation for damage caused by civil servants or public
employees or competent persons of procedure-conducting agencies.
Article 29.
Implementation responsibility
1. Ministers, heads of
ministerial-level agencies, heads of government-attached agencies and
chairpersons of provincial-level People's Committees shall implement this
Decree.
2. The Minister of Justice
shall, within the ambit of his/her tasks and powers, coordinate with concerned
ministries and branches in detailing and guiding the articles and clauses as
assigned in this Decree to meet the requirements of state management of
compensation work.-
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