Protection of the right of damage sufferers in the law on state compensation liability of viet nam = bảo vệ quyền của người bị thiệt hại trong luật trách nhiệm bồi thường của nhà nước của việt nam

VIETNAM NATIONAL UNIVERSITY SCHOOL OF LAW TRAN THI THU HANG PROTECTION OF THE RIGHT OF DAMAGE SUFFERERS IN THE LAW ON STATE COMPENSATION LIABILITY OF VIET NAM MASTER THESIS HA NOI - 2019 VIETNAM NATIONAL UNIVERSITY SCHOOL OF LAW TRAN THI THU HANG PROTECTION OF THE RIGHT OF DAMAGE SUFFERERS IN THE LAW ON STATE COMPENSATION LIABILITY OF VIET NAM Specialized in Law on human rights Code No.: 8380101.07 MASTER THESIS Scientists’ instructor: Dr LA KHANH TUNG HA NOI - 2019 STUDENT DECLARATION I, Tran Thi Thu Hang, declare that this Master thesis is my own work The figures, references and examples are accuracy, honesty I have completed all the subjects of the courses, has fulfilled all my financial obligations to the School of Law - Vietnam National University Therefore I offer the School of Law - Vietnam National University to consider the proposal so that I can defend my Master thesis Thanks faithfully! Student Tran Thi Thu Hang ACKNOWLEDGEMENTS With great joy have I written this thesis, but obviously I couldn‟t have done it all by myself Special thanks to my parents, who I can call whenever necessary to look after my children and encourage me to complete my thesis Also to Doctor La Khanh Tung, I could not wish a better instructor, who was not only my teacher during the whole postgraduate program but also my instructor to write my thesis His willing to help students, to have face to face meetings for discussions with every step of my research has helped me to complete my thesis on time Special thanks also to the School of Law, where we are always welcome Thank you, the Government of Australia, who has sponsored to the postgraduate program of human rights supporting us the diversity of learning materials and seminars relating to human rights And last, but certainly not least, my husband and two kids, the love of my life, who always give me a push and smile STUDENT Tran Thi Thu Hang TABLE OF CONTENTS STUDENT DECLARATION ACKNOWLEDGEMENTS TABLE OF ABBREVIATIONS PREFACE CHAPTER 1: SOME THEORETICAL ISSUES ON RIGHTS OF THE DAMAGE SUFFERER AND STATE COMPENSATION LIABILITIES 1.1 Rights of the damage sufferer and state liability to compensate 1.1.1 Definition, characteristics and elements of the rights of the damage sufferer 1.1.2 Definition, characteristic, elements of State compensation 11 1.1.3 Protecting the rights of the damage sufferers in the State compensation mechanism 1.2 22 Protecting the rights of the damage sufferers and State compensation liability in international and regional law 24 1.2.1 Rights of the damage sufferer in international law 24 1.2.2 Rights of the sufferer in the region law 27 1.2.3 Rights of the damage sufferers in some countries of the world 30 Conclusion of Chapter 39 CHAPTER 2: RIGHTS OF THE DAMAGE SUFFERER IN THE LAW ON STATE COMPENSATION LIABILITY IN VIET NAM 40 2.1 Period before 2009 40 2.1.1 Regulations of the law 40 2.1.2 Protection of the rights of the damage sufferer in practical in the period before 2009 48 2.2 Period from 2009 to 2017 49 2.2.1 The necessary to promulgate the Law on State compensation liability 2009 and the protection the rights of the damage sufferers in the Law on State compensation liability 2009 50 2.2.2 The practical of protecting the rights of the damage suffered through the State compensation liability in this period 56 2.2.3 Limitations and reasons 59 2.2.4 General comments 64 2.3 State compensation liability in the period 2017 up to now 65 2.3.1 Protecting the right of the damage sufferer in the Law on State compensation liability 2017 and comparion to the Law on State compensation liability 2009 66 2.3.2 Protecting the rights of the sufferer through the implementation of the Law on State compensation liability in the period from 2017 until now 74 2.3.3 Limitations, problems and causes .77 Conclusion of Chapter 79 CHAPTER 3: RECOMMENDATIONS TO PROTECT THE RIGHTS OF THE DAMAGE SUFFERER IN STATE COMPENSATION LIABILITY IN VIETNAM 3.1 80 Requirement from the Communist Party and State to protect the rights of the damage sufferer in the regulations on State compensation liability 80 3.2 Improving the Law on State compensation liability 81 3.2.1 The scope of State compensation liability 81 3.2.2 The compensable damages 82 3.2.3 The procedure to settle compensation 83 3.2.4 Coordination in compensation settlement 83 3.3 Improving the capacity of the official duty performers and the qualification of the public service 83 3.4 Establishing an independent agency to protect human rights and for the resolution of claims and payment of compensation 3.5 84 Continuing disseminate, educate and propagandize regulations on the rights of the damage sufferer and enhance the quality of the public service to assist the damage sufferers in carrying out the procedures for claiming compensation 86 Conclusion of Chapter 89 CONCLUSION 90 REFERENCES 92 APPENDIX TABLE OF ABBREVIATIONS Decree No 47/CP : Decree No 47/CP on the settlement of compensation for damage caused by State officials, employees or competent persons of legal proceedings agencies ICCPR : International covenant on Civil and Political rights 1966 Resolution No 388/2003/NQUBTVQH11 : Resolution No 388/2003/NQ-UBTVQH11 on compensation for the victims of wrongful convictions SCL : Law on State Compensation liability UN : United Nations PREFACE The urgency of the research topic After becoming a member of the United Nations (UN), Vietnam has gradually participated in most international conventions on human rights, including the International covenant on Civil and Political rights 1966 (ICCPR), Socialist Republic of Vietnam ratified it on September 24, 1982 Most countries in the world have recognized the right to compensation as one of the basic civil and political rights of people Accordingly, many countries have concretized in domestic laws with the recognition of the State's compensation responsibility for the damages caused by official duty performer during the performance of their duties In the proceeding of building the Socialist Rule of Law State as well as to implement international commitments that Vietnam has accepted, Vietnam has promulgated a system of laws, among them are regulations on the responsibility of the State to compensate for damages caused by an official duty performer while they are on duty The Constitution 1992 is the first document that clearly recognizes the right to claim compensation for illegal acts of official duty performers during the performance of public duties This provision is further affirmed and concretized in paragraph of Article 31 of Constitution 2013 The Civil Code 1995 has reserved two Articles 623 and 624 to stipulate the liability of state agencies and regulations This continues to be noted in the Civil Code 2005 (Article 619 and Article 620), Civil Code 2015 (Article 598) An important step is on June 18, 2009, the official Law on State compensation liability (SCL) was approved at the 5th session of the 12th National Assembly, which came into force on January 1, 2010 This is the first specific law regulates on the responsibility of the State to compensation for damage caused by illegal acts of official duty performers In addition to the achievements, SCL 2009 has also some limitations and shortcomings Therefore, on June 20, 2017, at the 3rd session of the National Assembly XIV has passed the SCL, which comes into force since July 1, 2018 These are the two leading laws that specifically regulate the rights of the damage sufferer due to illegal acts The content of compensated objects, scope of compensation liability, criteria for determining damages and compensation levels, funding, responsible agencies for compensation and especially principles and procedure to claim for compensation are stated clearer In the process of implementing the SCL from 2010 up to now, it shows that, although the rights of the damage sufferer have been assured, there are still many rights and interests of the damage sufferer that have not been guaranteed In the process of building the socialist rule of law state as well as to implement international commitments that Vietnam has ratified, the rights to compensation should be continued researching One of the ways to improve the effectiveness of ensuring the right to compensation is to study the effectiveness of the regulations in SCL 2009 and SCL 2017 Therefore, I choose to research on the topic of “Protection of the right of damage sufferer in the Law on State compensation liability of Viet Nam” for my Master thesis of law in human rights Research situation Until now, in Viet Nam there has only one books on Law on State compensation liability 2017, which is “Main contents of the Law on State compensation liability 2017” (State Compensation Department, 2017, People‟s Police Publishing House) But it has not been any research on the right of the damage sufferers in the SCL 2017 in particular There have been many projects and research only on Law on State compensation liability 2009 III SCOPE OF THE STATE COMPENSATION LIABILITY State agencies and agencies conducting legal have to caused by their officials, employees or compensate competent duty persons or performing investigation, prosecution, enforcement of judgments prescribed in Articles 623 and 624 of the Civil Code (Article Decree No 47/CP) In some cases proceedings (Resolution No 388) => compensation is concern mainly in criminal proceedings The scope of IV COMPENSATABLE DAMAGES AND RESTORATION OF HONOR Compensable Damage due to mental suffering; Material damage loss damage sufferers; due to Damage mental suffering; Return and compensation property infringement; Damage due to loss of in actual incomes injustice victim (Article to Article Resolution No UBTVQH11) Restoration of honor, include 02 forms: direct apology to, and public correction at the place of residence of, the individual or damage sufferer at damage sufferer being a commercial legal entity; Publishing the apology and correction in the press (Article 388/2003/NQ-UBTVQH11) Resolution V MECHANISM AND PROCEDURE TO CLAIM FOR COMPENSATION In cases where the victimized party directly requests the State agency or the agency proceedings damage compensate to caused employee by or by person of the the agency legal proceedings, the compensation shall be settled in the provisions of Article to Article 11 of Decree No 47 In cases agree where on the parties the compensation damage or one of the parties fails to strictly abide by the agreement, the parties shall have the right to request the settlement by the Court (Article Decree No 47) VI VII COMPENSATION PAYMENT ASSIST THE DAMAGE SUFFERER TO CARRY OUT THE PROCEDURES TO CLAIM FOR COMPE The Government has the responsibility to perform the unified state management of compensation management and judgment The Ministry of Justice shall assist the Government in performing this task Ministries, ministerial-level agencies and provincial-level People's Committees shall, within the ambit of their tasks and powers, perform the compensation work and annually report to the Ministry of Justice on their respective compensation work The Supreme People's Court and the proceedings and judgment execution in Supreme People's Procuracy shall, within their localities the scope of their respective tasks and powers, manage compensation work and coordinate with the Government in performing the state management of compensation work; annually notify the Ministry of Justice of their respective compensation work (Article 11 SCL 2009) (Article 73 to Article 75 SCL 2017) APPENDIX 2.2 SURVEY SUMMARY I INTERVIEW SCHEDULE Do you know about the responsibility of the State to protect your rights? Do you know about the Law on State compensation liability? How well is the Law known? Should the State or the official duty performer be liable to pay compensation? Why? According to you, what right should the injured party have? What damages should be compensated? Mental? Physical? Or both? Do you think the procedure used to solve disputes over state liability is appropriate? Have you ever been injured caused by the official duty performers? If yes, in what fields (administrative, criminal, civil execution, etc.)? 10 Have you any difficulties in exercising your compensation right? In your opinion what changes, if any, should to be made to the processes which are used to enforce the law? II ANSWER SHEET No Name N.T.H T.V.V D.T.M.G P.T.H No Name T.B.H.K V.X.H B.M.P N.T.M.L N V 10 D.V.H 11 H.N.H 12 L.T.T.H 13 N.V.C 14 L.T.K.L 15 N.T.V 16 L C 17 P.V.A.T 18 V.N.H 19 L.T.K.Y 20 T.H 21 V.V.A 22 N.V.H 23 N.V.T 24 N.V.T 25 L C 26 C.T.T.L 27 N.T.T No Name 28 D.T.H.Y 29 N.T.T.H 30 D.D.A 31 N.M.Q 32 T.V.H 33 N.D.C.H 34 T.V.H 35 N.V.B 36 L.T.P 37 L.M.C 38 P.T.H.A 39 D.T.L 40 T.H.K 41 P.V.O 42 V.V.N 43 N.B.D 44 N.T.T.T 45 L T 46 L.D.H 47 P.T.T ...VIETNAM NATIONAL UNIVERSITY SCHOOL OF LAW TRAN THI THU HANG PROTECTION OF THE RIGHT OF DAMAGE SUFFERERS IN THE LAW ON STATE COMPENSATION LIABILITY OF VIET NAM Specialized in Law on human rights... sufferer in the Law on State compensation liability of Viet Nam? ?? for my Master thesis of law in human rights Research situation Until now, in Viet Nam there has only one books on Law on State compensation. .. international integration of Vietnam 1.2 Protecting the rights of the damage sufferers and State compensation liability in international and regional law 1.2.1 Rights of the damage sufferer in international