THE
JUDGES' COUNCIL OF THE SUPREME PEOPLE'S COURT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
03/2006/NQ-HDTP
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Hanoi,
July 08, 2006
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RESOLUTION
GUIDING THE APPLICATION OF A NUMBER OF PROVISIONS OF THE
2005 CIVIL CODE ON EXTRA-CONTRACTUAL DAMAGE COMPENSATION
THE JUDGES' COUNCIL OF THE SUPREME PEOPLES COURT
Pursuant to the Law on Organization of the
People's Courts;
Pursuant to the National Assembly's Resolution No. 45/2005/QH11 of June 14,
2005 on "the Implementation of the Civil Code";
In order to apply in a correct and uniform manner the provisions of the 2005
Civil Code to the settlement of disputes over extra-contractual damage
compensation;
After obtaining the agreements of the Chairman of the Supreme People's
Procuracy and the Justice Minister;
RESOLVES:
I. GENERAL PROVISIONS
1. Liability to compensate
for damage
According to the provisions of Article 604 of
the 2005 Civil Code on the general principles, the liability to compensate for
extra-contractual damage shall arise only when all the following elements
appear:
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Damage includes material and spiritual damage.
a/ Material damage covers damage caused by
infringement upon property as provided for in Article 608 of the Civil Code;
damage caused by infringement upon health as provided for in Clause 1, Article
609 of the Civil Code; damage caused by infringement upon life as provided for
in Clause 1, Article 610 of the Civil Code; damage caused by infringement upon
honor, dignity, prestige as provided for in Clause 1, Article 611 of the Civil
Code.
b/ Spiritual damage of individuals shall be
understood as damage caused by infringement upon health, honor, dignity and/or
prestige of victims or by infringement upon life, for which the next of kin of
the victims have to suffer pain, agony, sentimental loss, prestige decline or
loss, distance from friends due to misunderstanding' and for which a sum of
money shall be compensated to make up for the loss they have suffered.
Damage caused by mental sufferings to legal
persons and subjects other than legal persons (referred collectively to as
organizations) shall be understood as damage caused by infringement upon honor
and/or prestige, which leads to the decrease or loss of trust, confidence in
such organizations due to misunderstanding and for which a sum of money shall
be compensated to make up for the losses such organizations have to suffered.
1.2. There must be illegal acts committed.
Illegal acts means specific human behaviors
expressed through action or non-action contrary to the provisions of law.
1.3. There must be the cause-effect relations
between damage caused and illegal acts. The damage caused must be the
indispensable results of the illegal acts and vice versa the illegal acts are
the cause of the damage.
1.4. There must be intentional or unintentional
faults of the damage causers.
a/ Intentionally causing damage means the case
where a person is fully aware that his/her act will cause damage to another
person but still commits it and wishes or does not wish but let the damage
happen.
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It should be noted that for cases where the law
requires compensation for damage even when the damage causers are not at fault,
the damage causers' liability to compensate for damage shall comply with the
provisions of such legal documents.
2. Principles for damage
compensation
2.1. Upon settling disputes over compensation
for extra-contractual damage, the principles for damage compensation provided
for in Article 605 of the Civil Code should be strictly observed. The
agreements reached between the parties on the compensation levels, forms and
modes should be respected if such agreements do not run counter to law and
social ethics.
2.2. In cases where the parties cannot reach any
agreement, when setting disputes over compensation for extra-contractual
damage, attention should be paid to the following:
a/ Damage must be fully compensated for, meaning
that when there is a claim for compensation for damage caused by infringement
upon property, health, life, honor, dignity and/or prestige, it should be based
on the relevant provisions of the Civil Code in such specific cases that the
damage covers which items and the levels of damage caused, the extent of fault
of the parties in order to compel the damage causers to compensate for such
corresponding damage amounts.
b/ In order to have damage compensated in time,
the court shall quickly handle the claims for damage compensation within the
time limit prescribed by law. In case of necessity, one or a number of
provisional emergency measures can be applied under the provisions of the
procedural law in order to settle urgent claims of the involved parties.
c/ The damage causers can enjoy lower
compensation levels only when they fully meet the two following conditions:
The damage is caused due to their unintentional
faults;
The caused damage is too great for their
immediate and long-term economic capabilities, which means the caused damage
for which they have to compensate but cannot pay full or large compensation for
such damage due to their immediate and long-term economic circumstances.
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3. Liability capacity to
compensate for damage
3.1. When implementing the provisions of Article
606 of the Civil Code on liability capacity to compensate for damage, attention
should be paid to correctly determining the capacity of the involved parties in
each case, concretely as follows:
- For the case specified in Clause 1, Article
606 of the Civil Code, the damage causers are civil respondents unless they
have lost their civil act capacity;
- For the case specified in Paragraph 1, Clause
2, Article 606 of the Civil Code, the fathers, mothers of the damage causers
are civil respondents;
- For the case specified in Paragraph 2, Clause
2, Article 606 of the Civil Code, the damage causers are civil respondents and
their fathers, mothers are persons with related interests and obligations;
- For the case specified in Clause 3, Article
606 of the Civil Code, their guardians being organizations or individuals are
civil respondents.
3.2. The decision on compensation (with
property) must be specific and compliant with the provisions of Article 606 of
the Civil Code.
4. Reasonable expenses
Reasonable expenses specified at Points a and c,
Clause 1, Article 609, Points b and c, Clause 1 of Article 610, and Point a,
Clause 1 of Article 611 of the Civil Code mean necessary actual expenses
suitable to the nature and extent of damage, and the average prices in each locality
at the time of paying the expenses.
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a/ The victims claiming damage compensation
shall clearly state every actual damage caused, the compensation level demanded
and produce valid vouchers or receipts on reasonable expenses and their
incomes.
b/ The damage causers requesting reduction of
damages shall produce documents and vouchers showing that their immediate and
long-term economic capabilities are not enough for full or large compensations
for the damage caused.
c/ The victims or damage causers requesting
change of compensation level must file their applications therefor. Enclosed
with the applications are documents and evidences serving as bases for the
application for change of compensation levels.
d/ The testimony for being not at fault falls
under the obligation of the persons responsible for damage compensation.
6. On the statute of
limitations for initiating lawsuits to claim damage compensation
The statute of limitations for initiating
lawsuits to claim damage compensation shall be determinal as follows:
a/ For cases of extra-contractual damage
compensation, which have arisen as from January 1, 2005 (the date the Civil
Procedure Code took effect), the statute of limitations for initiating lawsuits
to claim damage compensation shall be two years counting from the date the
legitimate rights and interests of individuals, legal persons or other subjects
are infringed upon.
b/ For cases of extra-contractual damage
compensation, which had arisen before January 1, 2005, the statute of
limitations for initiating lawsuits to claim damage compensation shall be two
years counting from January 1, 2005.
II. DETERMINATION OF DAMAGE
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Damage caused by infringement upon health shall
cover:
1.1. Reasonable expenses for treatment, nursing
and the rehabilitation of health and/or lost or impaired functions of the
victims, including money paid for rental of vehicles to carry the victims for
emergency treatment at medical establishments; medicines and purchased medical
instruments, costs of X-ray, scanner, ultrasonic checks, tests, surgery, blood
transfusion, physio-therapy' under doctor prescriptions; hospital charges;
money paid for the purchase of tonic medicines, protein fluid transfusion, for
rehabilitation of health of the victims under doctor prescriptions; other
actual and necessary expenses for the victims (if any) and expenses for
artificial legs, arms, spurious eyes, wheelchairs, crutches and aesthetic
rehabilitation' to support or replace the impaired or lost body functions of
the victims (if any).
1.2. The lost or reduction of the victims'
actual incomes. If before their health is infringed upon, the victims have
actual incomes but later due to infringement upon their health, they are
hospitalized and their actual incomes are lost or reduced, they shall be
compensated for such actual lost or reduced income amounts.
a/ The victims' actual incomes shall be
determined as follows:
- If before their health is infringed upon, the victims
have stable incomes from payroll salaries or contractual remunerations, their
actual incomes shall be determined, based on the salary or remuneration amount
of the preceeding month before their health is infringed upon multiplied by the
hospitalization duration.
- If before their health is infringed upon, the
victims work and earn actual monthly incomes which vary from month to month,
their actual incomes shall be determined by multiplying the average incomes of
six consecutive months (or all the months if it is under full six months)
before their health is infringed upon by the hospitalization duration.
- If before their health is infringed upon, the
victims' actual incomes are not stable and cannot be determined, their actual
incomes shall be determined by multiplying the average incomes of laborers of
the same kind by the hospitalization duration.
- If before their health is infringed upon, the
victims do not work and have no actual incomes, they shall not be compensated
as provided for at Point b, Clause 1, Article 609 of the Civil Code.
b/ Victims' lost or reduced actual incomes shall
be determined as follows:
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Step two: Comparing the victims' actual incomes
in the hospitalization duration with the corresponding actual incomes
determined under the guidance at Point a of this Item 1.2. If they do not have
any actual incomes in the hospitalization duration, their actual incomes are
lost; if it is lower, the differences shall be their reduced actual incomes; if
it is equal, the victims' actual incomes are not lost.
Example 1: A has worked as a self-employed
motorbike repairer. His actual income before his health is infringed upon is
stable with an average of one VND million per month. Due to the infringement
upon his health, he has to be hospitalized, thus having no income. In this
case, A's actual income is lost.
Example 2: B has worked for a limited liability
company. His actual income before his health is infringed upon is stable with
an average of VND 600,000 per month. Due to the infringement upon his health, B
has to be hospitalized and during the time of treatment, he is paid 50% of his
salary, with VND 300,000 per month. In this case, B's actual income is reduced
by VND 300,000 per month.
Example 3: C is a public servant having a stable
monthly income of VND 500,000. Due to infringement upon his health, C has to be
hospitalized and during the time of treatment, he is fully paid by his agency.
In this case, C's actual income is not lost.
1.3. Reasonable expenses and lost actual incomes
of the persons who take care of the victims during the time of treatment
a/ Reasonable expenses for the persons who take
care of the victims during the time of treatment shall cover travel fares,
house rents at average local prices for one of the persons taking care of the
victims during the time of treatment as necessary or at the request of the
medical establishments.
b/ Lost actual incomes of the persons taking
care of the victims during the time of treatment shall be determined as
follows:
- If the persons taking care of the victims have
stable actual incomes from payroll salaries or contractual remunerations, their
lost actual incomes shall be determined by multiplying their salary or
remuneration of the preceeding month before such persons have to go for taking
care of the victims by the duration of taking care of the victims.
- If the persons taking care of the victims work
and earn stable monthly incomes which, however, vary from month to month, their
lost actual incomes shall be determined by multiplying the average incomes of
six consecutive months (or all the months if it is less than six months) before
such persons have to go taking care of the victims by the duration of taking
care of the victims.
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- If in the duration of taking care of the
victims, the persons taking care of the victims are still paid with salaries,
remunerations and social insurance under the labor law by their agencies or
employers, their actual incomes are not lost, and hence they shall not be
compensated.
1.4. Where after the treatment, the victims lose
their working capacity and need regular caretakers (due to myeloplegia, total
blindness, paraplegia, serious mental illness and other cases of permanent
working capacity reduction of 81% or more as provided for by competent state
bodies, compensation for reasonable expenses for taking care of the victims
must be paid.
a/ Reasonable expenses for taking care of the
victims cover monthly expenses for nurturing and treatment of the victims and
expenses for regular caretakers of the victims.
b/ Reasonable expenses for regular caretakers of
the victims shall be calculated as equal to the average remunerations paid to
regular caretakers of the disabled people in the localities where the victims
reside. In principle, damage compensation shall be paid to only one caretaker
of a victim losing his/her working capacity.
1.5. Compensation for mental sufferings caused
by infringement upon health
a/ The sum of money as compensation for mental
sufferings caused by infringement upon health shall be paid to the very
victims.
b/ In all circumstances, when their health is
infringed upon, the victims shall be paid a sum of money as compensation for
their mental sufferings. The guidance at Point b, Item 1.1, Section I of this
Resolution should be based to determine the extent of victims' mental
sufferings. The determination of the extent of mental suffering should be based
on their impacts on profession, aesthetics, social relations, family life and
individuals'.
c/ The level of compensation for mental
sufferings of the victims shall be agreed upon by the parties first. If no
agreement is reached, it shall be based on the extent of mental sufferings,
which, however, shall not exceed 30 months' minimum salary set by the State at
the time of compensation.
2. Damage caused by
infringement upon life
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2.2. Reasonable expenses for funeral shall cover
the sums of money for purchase of coffins, essential articles for shrouding,
mourning head-bands, incense sticks, candles, flowers, hearse and other
expenses in service of the burial or cremation of the victims according to
common practices. No compensation shall be paid for expenses for worshiping
rituals, offerings, food and drinks, construction of tombs, exhumation and
reburial, etc.
2.3. Support allowances for persons whom the
victims have the obligation to support until they die
a/ Support allowances shall be considered and
paid only to persons whom the victims have the obligation to support if before
their lives are infringed upon, the victims have actually performed their
support obligation. The persons being provided with support allowances by the
victims shall be compensated with corresponding amounts. Persons who are being
provided with support allowances by the victims shall, after the victims' lives
are infringed upon, be compensated with reasonable support allowances suitable
to the income and actual capabilities of the compensation payers and the
essential needs of the compensated persons.
The time to provide support allowances shall
start from the time life is infringed upon.
b/ Subjects entitled to support allowances
- Wives or husbands who have lost their working
capacity, have no property to live on and are being nurtured by their husbands
or wives who are victims;
- Minor children or adult children who have lost
their working capacity, have no property to live on and are being nurtured by
their fathers, mothers who are victims.
- Fathers and mothers who have lost their
working capacity, have no property to live on and are provided with support
allowances by their children who are victims;
- Wives or husbands after their divorces, who
are provided with support allowances by the other partner (husbands or wives
before their divorce) who are victims.
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- Minor siblings who have no property to live on
or adult siblings who have lost their working capacity, have no property to
live on, in cases where their parents have died or lost their working capacity,
have no property to support their children, and who are being provided with
support allowances by their adult brothers or sisters who live separately and
are victims;
- Brothers and sisters who have lost their
working capacity, have no property to live on and are being provided with
support allowances by their younger brothers and/or sisters who live separately
and are victims.
- Minor grandchildren or adult grandchildren who
have lost their working capacity, have no property to live on and have no one to
provide support allowances and are being provided with support allowances by
their paternal grandparents or maternal grandparents, who live separately and
are victims.
- Paternal grandparents and maternal
grandparents who have lost their working capacity, have no property to live on
and have no one to provide support allowance but are being provided with
support allowances by their adult grandchildren who live separately and are
victims.
2.4. Sums paid as compensation for mental
sufferings due to infringement upon life
a/ Persons enjoying sums of compensation for
mental sufferings in this case shall be the victims' relatives of first-rank
inheritance, including wives, husbands, natural fathers, natural mothers,
adoptive fathers, adoptive mothers, offsprings, adopted children.
b/ Where there are no persons defined at Point
a, Item 2.4 of this Section 2, the persons whom the victims have directly
nurtured and the persons who have directly nurtured the victims shall enjoy
such sums of compensation for mental sufferings.
c/ In all circumstances, when the victims' lives
are infringed upon, their relatives of the first-rank inheritance or the
persons whom the victims have directly nurtured and the persons who have
directly nurtured the victims (hereinafter referred collectively to as
relatives of the victims) shall enjoy the sums of compensation for mental
sufferings. It is necessary to base on the guidance at Point b, Item 1.1,
Section 1, Part I of this Resolution to determine the extent of mental
sufferings of the victims' relatives. The determination of the extent of mental
sufferings must be based on the victims' positions in their families, the life
relations between the victims and their relatives.
d/ The general level of compensation for mental
sufferings shall be agreed upon by the parties. If no agreement is reached, the
level of compensation for mental sufferings for all relatives of the victims
shall be based on the extent of mental sufferings, the number of their
relatives, which, however, shall not exceed 60 months' minimum salary set by
the State at the time of compensation."
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Damage cased by infringement upon honor, dignity
or prestige shall cover the damage caused by infringement upon honor, dignity
or prestige of individuals; and damage caused by infringement upon honor or
prestige of organizations.
3.1. Reasonable expenses for limiting and/or
remedying the damage shall cover necessary expenses for withdrawal of
publications infringing upon the honor, dignity or prestige of the victims;
expenses for gathering of materials and evidences to prove that the honor,
dignity or prestige is infringed upon; travel fares, accommodation rents (if
any) at the average prices in the localities where the expenses are paid in
order to request the functional agencies to verify matters, make corrections on
the mass media; expenses for organization of public apology and correction at
the residence or workplaces of the victims and other actual and necessary expenses
to limit and redress the damage (if any).
3.2. Actual incomes lost or reduced
a/ If before their honor, dignity or prestige is
infringed upon, the victims had actual incomes which have been lost or reduced
due to the fact that the victims had to perform jobs to limit or redress the
damage, they shall be compensated for such lost or reduced actual income
amounts.
b/ Actual incomes of the victims and their lost
or reduced actual incomes shall be determined under the guidance at Item 1.2,
Section 1, this Part II.
3.3. Sums of compensation for mental sufferings
caused by infringement upon honor, dignity or prestige
a/ Sums of compensation for mental sufferings
caused by infringement upon honor, dignity or prestige shall be paid to the
very victims.
b/ In all cases where their honor, dignity or
prestige is infringed upon, the victims shall each be paid a sum of
compensation for mental sufferings. The extent of mental sufferings of the
victims shall be determined under the guidance at Point b, Item 1.1, Section 1,
Part I of this Resolution. The determination of the extent of mental sufferings
must be based on the forms of infringement (by words or by writings on printed
or visual newspapers '), acts of infringement, the spread of infringing
information,'
c/ The level of compensation for mental
sufferings of the victims shall be agreed upon by the parties first. If no
agreement is reached, the level of compensation for mental sufferings must be
based on the extent of mental sufferings, which, however, shall not exceed 10
months' minimum salary set by the State at the time of compensation."
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a/ In cases where the victims have totally lost their
working capacity, they shall be entitled to enjoy the compensation amount
guided at Point a, Item 1.4, Section 1 of this Part II until they die.
b/ Support allowances guided in Item 2.3,
Section 2 of this Part II shall terminate in one of the cases provided for in
Article 61 of the Law on Marriage and Family.
III. COMPENSATION FOR DAMAGE
CAUSED BY SOURCES OF EXTREME DANGER (ARTICLE 623 OF THE CIVIL CODE)
1. Determination of sources
of extreme danger
a/ When means of transport, works, objects,
substances or animals of any kind cause damage, in order to have grounds for
the application of Clauses 2, 3 and 4 of Article 623 of the Civil Code to
determine the liability to compensate for damage, the sources of causing harms
must be identified to see if they are of extreme danger or not.
b/ The determination of sources of extreme
danger should be based on Clause 1, Article 623 of the Civil Code and other
relevant legal documents or regulations of competent state bodies in such
specific domain. For example: In order to identify motorized means of land
transport, the Law on Road Traffic must be based on. According to provisions of
Point 13, Article 3 of the Law on Road Traffic, motorized means of land
transport shall include automobiles, tractors, motorized two-wheelers,
motorized three-wheelers, mopeds and the like, including motorized vehicles for
disabled people.
2. Determination of liability
to compensate for damage caused by sources of extreme danger
a/ The owners of sources of extreme danger who
are possessing or using sources of extreme danger must compensate for damage
caused by their sources of extreme danger. Owners who are possessing, using
sources of extreme danger are those who are performing every act at their own
will to seize, manage the sources of extreme danger but must not run counter to
law and social ethics; exploit their utility, enjoy yields and profits from
such sources of extreme danger.
b/ Persons who are assigned by owners of sources
of extreme danger to possess, use the sources of extreme danger according to
the provisions of law must compensate for damage caused by such sources of
extreme danger, unless otherwise agreed upon by the owners, possessors or users
and their agreements are not contrary to law and social ethics or do not aim to
shirk the compensation.
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- The agreement to jointly bear responsibility
for damage compensation;
- The agreement that the owners shall pay the
damage compensation first, then the possessors or users shall refund the
compensation sums to the owners;
- The agreement that those who are in better
economic situation shall pay the damage compensation first.
Where owners of sources of extreme danger assign
other persons to possess and/or use the sources of extreme danger in
contravention of the provisions of law, thus causing damage, the owners shall
have to compensate for damage.
Example: If an owner knows that a person has no
driving license but still delegates the latter the right to possess and use the
vehicle, thus causing damage, then the owner shall have to pay compensation for
the damage.
c/ On the principle of co-owners, persons who are
assigned to lawfully possess and use the sources of extreme danger shall have
to compensate for damage caused by such sources of extreme danger even when
they are not at fault, except for the following cases:
- The damage is caused totally by the intentional
fault of the victims;
Example: A car is joining in traffic strictly in
accordance with the provisions of law but suddenly a person plunges into the
car to commit suicide and consequently such person is seriously injured or
died. In this case, the owner and the person assigned by the owner to possess
and use the car lawfully shall not have to compensate for the damage caused by
the source of extreme danger (the car).
- The damage occurs in force majeure
cases or emergency circumstances, except otherwise provided for by law. It
should be noted that in cases where the law otherwise provides for the
liability to compensate for damage caused by sources of extreme danger in force
majeure cases or emergency circumstances, the liability to compensate for
damage shall comply with the provisions of such legal documents.
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If the owners or the persons assigned by the
owners to possess and use the sources of extreme danger let such sources of
extreme danger be unlawfully possessed and used (non-compliance or improper
compliance with regulations on preservation, storage, transportation and use of
sources of extreme danger in accordance with the provisions of law), they shall
join the unlawful possessors and users in compensating for damage caused by the
sources of extreme danger.
e/ If owners of sources of extreme danger have
assigned their sources of extreme danger to other persons and damage is caused,
it is a must in such specific case to determine whether or not the persons
assigned the sources of extreme danger are the possessors and users of such
sources of extreme danger in order to determine who shall be liable to
compensate for the damage.
Example: A is the owner of a car and assigns
such car to B. B drives the car and has caused an accident, thus causing
damage. In this case, it is necessary to distinguish:
- If B is hired by A only to drive the car and
gets paid, this means that B is not the possessor and user of such car but A;
hence, A must compensate for damage.
- If B is assigned the car by A through a
contract on property rental. This means that A no longer possesses and uses
such car and B is the lawful possessor and user; hence, B must compensate for
the damage. If in this case, with A's consent, B assigns the car to C through a
contract on sublease of property, C shall be the lawful possessor and user of
such car; hence, C shall have to compensate for the damage.
IV. IMPLEMENTATION EFFECT
1. This Resolution was passed by the Judges'
Council of the Supreme People's Court on July 8, 2006, and takes effect 15 days
after its publication in "CONG BAO."
This Resolution shall replace Resolution No.
01/2004/NQ-HDTP of April 28, 2004, of the Judges' Council of the Supreme
People's Court.
2. For cases where specific legal documents
provide for compensation for extra-contractual damage, the handling thereof
shall comply with such legal documents.
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4. For court judgments and decisions which have
come into force before this Resolution takes effect and ruled on the
compensation for extra-contractual damage under the guidance in this
Resolution, this Resolution shall not apply to the protest according to
cassation or reopening procedures, unless the judgments or decisions are
protested on other grounds.