The right to compensation of the damage sufferer in the law on state compensation of Vietnam

The scope of State compensation covers the State’s liability to pay compensation to individuals and organizations suffering from damage caused by the official-duty performers in adminis[r]

204 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

THE RIGHT TO COMPENSATION OF THE DAMAGE SUFFERER IN THE LAW ON STATE COMPENSATION OF VIETNAM

Nguyen Xuan Sang People’s Police Academy, Vietnam Tran Thi Thu Hang Ministry of Justice, Vietnam Abstract:

The State as a special subject in a relationship with individuals and organizations may in some cases cause damage through the violation of the state officials, who act on behalf of the State Therefore, in order to protect the rights of individuals and/or organizations on the one hand, and to ensure the stability of public activities and to encourage state officials to exercise their powers lawfully on the other hand, the Law on State compensation was promulgated in 2009 and amended in 2017 Nevertheless, to protect the full legal rights of the damage sufferers, Vietnam needs to continue revising relevant legislative documents as well as have solutions to protect the right to compensation of the damage sufferers in practice

This paper offers answers to the questions: (1) What state compensation and the right to compensation of the damage sufferers mean in Vietnam?; (2) What is the development of State compensation?; and (3) How is the right to compensation of the damage sufferers protected according to the Law on State compensation in Vietnam?

Keywords: Law on State compensation, damage sufferer, Vietnam

1 What State compensation and the right to compensation of the damage sufferer mean in Vietnam and what is the development of State compensation?

205

PART - PUBLIC LAW IN VIETNAM: COMPARATIVE CONTEXTS

a civil liability for non-contractual damage compensation according to the principle of “people who cause damage must compensate for the damage sufferers” There are two parties in the relationship of the State compensation: the public servants (the State) causing a violation and the individuals and/ or organizations suffering from the violation The objective of State compensation is the rights and legitimate interests of individuals and organizations “On the one hand, the State must compensate materially and spiritually to those who are suffering; on the other hand, though the State’s losses seem to be invisible, the actual consequences can still be easily seen That is the prestigious decline of the State, the missing of people’s belief in the State” Therefore, State compensation is not only the liability to compensate for the damage of property but is also the responsibility to restore mental losses to people suffering from violations of the public servants

State compensation has an important role both in political and legal meaning Politically, State compensation is an expression of the rule of law The purpose of this Law is twofold: to guarantee the rights of individuals and legal entities to obtain compensation; and to encourage state officials to exercise their powers lawfully All acts of infringement of the legitimate rights and interests of an individual and an organization shall be handled according to the provisions of law without discrimination against the subject affected by the illegal acts regardless whether it is an organization or an individual The recognition of State compensation and the establishment of a mechanism to ensure this legal responsibility is an effective tool to implement the rights and legitimate interests of citizens Therefore, the development, promulgation and implementation of laws on State compensation are an essential task to achieve the goal of building a socialist rule of law Through the mechanism of State compensation, on the one hand, the damage sufferer, who is the victim of the wrongdoing of the official duty performers, has the right to claim compensation for the material damage and mental losses they have suffered On the other hand, official duty performers have to raise their awareness and responsibility while performing their duties, contributing positively to improving the effectiveness of activities Finally, it will contribute to the process of building a good governance state Legally, State compensation is an effective legal mechanism to ensure the implementation of the right to compensation of the organizations and individuals regulated in the Constitution At the same time, it contributes to maintaining the stability of public activities In the State compensation mechanism, the State is the subject of compensation that represents the official duty performer who has caused the damage On the basis of recognition of State compensation, through legal instruments, the State specifies criteria for determining compensation responsibilities, compensated damages, responsibilities and procedures for settlement of compensation State compensation mechanism has a function of ensuring the stability of public activities In cases where official duty performers make unintentional or intentional errors while performing official duties, which cause damage to individuals and organizations, the State shall take responsibility for compensation Furthermore, as the subject of national treasury management, the State is at a better position to fulfil the obligation of paying compensation for the damage sufferered With these functions, the legal mechanism of State compensation plays a very important role in the improvement of the Vietnamese legal system in the context of building a socialist rule of law state, which is suitable with the current international integration of Vietnam

206 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS terms used to refer to individuals and/or organizations that suffer from the violation of public servants, for example, “victim”, “injured party” or “damage sufferer” The term “victim” can be understood as people who have suffered the effects of violence and is mainly used to mention the person harmed by criminal acts or attacks, while “injured” is the term given to the person who has been hurt or physically harmed In Vietnam, the term “damage sufferer” is used for an individual or an organization that suffers from a material damage or has a mental suffering caused by an official duty performer within the scope of state compensation liability The right to compensation means the right to claim for compensation and the right to get the compensation (mental or physical) corresponding to the losses

1.2 From the 11th to the 19th century, the Vietnamese feudal state was always organized in the form of tyrannical monarchy, with all state power in the hands of the King “Quoc trieu hinh luat” and “Hoang Viet luat le” were two of the most well-known written laws in this period “Quoc trieu hinh luat” focused on the responsibilities of the officials on public services and had many regulations on political and legal responsibilities of officials For example, there were strict punishments such as fine for delaying the official dispatch1 etc In particular, it specified the compensation responsibilities of

officials due to their violations of regulations on public services The amount of compensation paid by the officials to the sufferer is twice as much as the amount of damage that person had to suffer Besides the written law, it was found that when the King himself made a mistake because of causing damage to the people by his soldiers, he apologized and promised to compensate for the loss of the people Quang Trung (1753-1792), a king with many glorious victories, was praised as a wise and brilliant King According to historical records by historian Tran Van Giap, in 1789, after King Quang Trung defeated the Thanh army, the Van Chuong people (near Van Mieu) reported to the King that in 1786, Thang Long Temple of Literature was set on fire by the King’s soldiers After hearing the report, the King replied “I not blame the poor peasant / I am only afraid of the Confucianist teacher/ / Daring to call the King as Him! Who is the Confucianist teacher? Allow the Ministry to ask and people declare” According to historians, on hearing people’s “petition”, the king did not reject, but accepted the responsibility and promised to repair the Temple of Literature2 Through this incident, it can be

seen that the concept of “King cannot anything wrong” in the ancient Persian Empire was not absolute King Quang Trung is a typical example of listening and receiving the opinions of the people, standing out to compensate the people for the violations caused by his army However, in general, in the feudal society, the King was supreme Therefore, the rule of law and state compensation were not common in this period In democratic societies, along with the socioeconomic development, human rights are also of more concern Thus, the rule of law is known as a method of governing state power to prevent power abuse so that people’s rights are protected

About “Hoang Viet luat le”, in addition to recognizing the officials’ responsibilities and other forms of treatment3, the responsibility for compensation is also mentioned For example, in the Nguyen

Dynasty, “Hoang Viet luat le” stated that officials had the liability to compensate Of the total 53 cases in which officials had the responsibility for compensation during the four dynasties, violations in the 1 History Institution, Quoc trieu hinh luat – Luat hinh trieu Le (Judicial Publishing house 2013) Article 23

2 Trung Sơn, ‘Nhung vi vua su Viet mnh nhan loi’ (Vnexpress, 18 April 2016) <https://vnexpress.net/tin-tuc/ thoi-su/nhung-vi-vua-trong-su-viet-ha-minh-nhan-loi-3388100.html> accessed 26 March 2018

207

PART - PUBLIC LAW IN VIETNAM: COMPARATIVE CONTEXTS

construction sector accounted for the highest number (27 cases), followed by violations in treasure management, wages, military, judicial and taxes (31 cases), occupying 58.5% At the central level, there were 22 cases, accounting for 41.5%1

In order to guarantee the compensation responsibility of officials, besides “Hoang Viet luat le”, the State also issued regulations to ensure the implementation of this law For example, in 1858, there was a rule governing “the amount of remuneration”; in 1870 the “rules and regulations on compensation for evidence”; in 1874 the provision of “collect evidence must be compensated”; in 1975 the “procedure for compensation for loss of public works”, etc.2 Furthermore, by reviewing the

regulations of the “Hoang Viet luat le”, it was revealed that several rules also mentioned the recovery and reimbursement of compensation of officials in case of death or retirement From the written regulations in the “Quoc trieu hinh luat”, “Hoang Viet luat le” and in legal practices at King Quang Trung’s time, it can be summarized about the officials’ compensation responsibilities to the people as follows:

(i) In case of an official’s violations of official dutie, the State did not directly compensate the people, but the compensation responsibilities belonged to the official Indeed, on the one hand, the official was subject to punishment by the State (such as fine, discipline ) On the other hand, in the relationship with the affected person, the official was responsible for paying compensation to him or her – the damage sufferered

(ii) The level of compensation by officials was determined based on the actual amount of damages incurred, except for the loss of life, which should be calculated at a particular level

After the success of the August Revolution, on September 2, 1945, President Ho Chi Minh read the Declaration of Independence of the Democratic Republic of Vietnam – the State of the People, by the People and for the People According to this Declaration, the basic rights of Vietnamese citizens are established and guaranteed by law In civil relations with people, the State is an equal party of rights and obligations However, State compensation was still not regulated by the law In the 1959 Constitution, the right to compensation of the people was stipulated for the first time in Article 29, which stated “citizens of the Democratic Republic of Vietnam have the right to complain of and denounce to any organ of state, any servant of the state for transgression of law These complaints and denunciations must be investigated and dealt with rapidly People suffering loss owing to infringement of their citizen rights, by servants of the state, are entitled to compensation” In order to guide this provision, on March 23, 1972, the Judge Council of the People’s Supreme Court issued Circular No 173/ TANDTC is guiding the trial of tort damages Therein, it stipulates the liability of the legal entity to compensate on behalf of its employees, workers or legal representatives while these people perform their responsibilities and cause damage to others Therefore, the enterprise must firstly compensate for the damage, according to the civil liability regime and then has the right to ask its employees to repay the compensation according to labour relations However, in case the worker, official or legal representative of the enterprise or the agency takes advantage of the task and performs actions that are not closely related to the assigned work, which causes damage to others, it is clear that s/he seeks for his or her own interests by doing so, thus, s/he must be responsible for compensation for his/her own

208 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS In 1977, Vietnam officially became a member of the United Nations, one requirement of which is to promote and fulfil human rights Moreover, in 1982 Vietnam ratified the International covenant on civil and political rights 1966 and the International covenant on economic, social and cultural rights 1966 These two Conventions acknowledged human rights in detail, and include the responsibility of the State member Therefore, each State Party undertakes measures “to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy”1 In order to nationalize this regulation,

Vietnam Constitution 1980 affirmed that the rights to life, property, honour and dignity of citizens are protected Furthermore, it insisted that the violation of those rights shall be corrected, strictly handled and compensated to the damage sufferered2 Based on the provisions of the Constitution

1980, Article 24 of the Criminal procedure code 1988 stipulated that “Citizens have the right to complain and denounce illegal acts of the investigating agencies, Procurator and Court or any individual belonging to that agency The competent authority must consider and promptly resolve complaints and denunciations, notify in writing the results to the complainant and take remedial measures The agency has made an injustice have to restore honour, rights and compensation to the damage sufferered Individuals who commit wrongdoing shall, depending on each case, be disciplined or examined for penal liability”

The Constitution 1992 continued to affirm the principle: “All infringements on the interests of the State and on the lawful rights and interest of collectives and citizens shall be sanctioned according to law”3 but distinguished between the two types of responsibilities: (i) the responsibility of the

litigation agency4 and (ii) liability for compensation5 To execute the regulations mentioned in the

Constitution 1992, the Civil Code 1995 regulated “State agencies must compensate for damages caused by civil servants and employees while they are on duty State agencies shall have to request public employees and officials to repay the amount they have compensated to the victims, according to the provisions of law, if public employees or officials make errors while performing official duties”6

Procedure-conducting agencies must compensate for damage caused by their competent persons while performing an investigation, prosecution, trial and judgment execution tasks The agency conducting the proceedings shall have to request the competent person that caused the damage to repay the sum of money s/he has to compensate to the victim, according to the provisions of law, if the competent person makes a mistake when performing tasks7.

To clarify the application of Article 623 and 624, Civil code 1995, on May, 1997, the Government promulgated Decree No 47/CP It was a remarkable step in providing and promulgating detailed instructions which specified the effective implementation of Article 623 and 624 in the Civil code 1995 The victim party is entitled to request the State agency or the legal proceedings, agency to compensate for the damage caused to it by the official, employee or competent person of such agency or 1 International convention on civil and political rights 1966, Article

209

PART - PUBLIC LAW IN VIETNAM: COMPARATIVE CONTEXTS

request the Court to protect its legitimate rights and interests Immediately after Decree No 47/CP was established, to stipulate in detail and guide the implementation of Decree No 47/CP, the agencies with state management competence in the relevant field had issued many legal documents For example, on June 4, 1998, the Government Commission for Organization and Personnel (now the Ministry of Home Affairs) issued Circular No 54/1998/TT-TCCP, guiding the implementation of any regulations in Decree No 47/CP On March 30, 1998, the Ministry of Finance issued Circular No 38/1998/TT-BTC, guiding the estimation of state budget for compensation for damages caused by civil servants, officials and competent persons of State authorities, proceeding-conducting agencies, etc

In addition to explicating the provisions of Article 72 Constitution 1992 on compensation for damage in the judicial and criminal fields, in order to ensure the right to compensation of the damage sufferered, the National Assembly promulgated the Criminal procedure Code 2003 and on March 17, 2003, the National Assembly Standing Committee issued Resolution No 388/2003/NQ-UBTVQH11 This Resolution was also a turning point in the state recognition of its compensation responsibility for damage caused by wrongful convictions and false imprisonment To facilitate the implementation of Resolution No 388 in practice, the State authority has promulgated some legal documents, such as Joint Circular No 01/2004/TTLT-VKSNDTC-BCA-TANDTC-BTP-BQP-BTC guiding the implementation a number of provisions of Resolution No 388; Joint Circular No 04/2006/TTLT-VKSNDTC-TANDTC-BCA-BTP-BQP-BTC (replacing Circular No 01/2004 /TTLT-VKSNDTC-BCA-TANDTC-BTP-BQP-BTC); Directive No 04/CT-VKSNDTC on the implementation of the Law on Criminal Procedure; Circular No 18/2004/TT-BCA by the Ministry of Public Security guiding compensation for damage to victims caused by competent persons in criminal activities under the People’s Police, etc

However, it was not until 18 June 2009 that the right to compensation of damage sufferer was fully defined, after the National Assembly promulgated the State compensation liability law, which came into force on 01 January 2010 (SCL 2009) It consisted of eight chapters with 67 Articles The scope of State compensation covers the State’s liability to pay compensation to individuals and organizations suffering from damage caused by the official-duty performers in administrative management, legal proceedings and judgment enforcement activities; compensation procedures; the rights and obligations of individuals and organizations suffering from damage; compensation funds and the reimbursement liability of official-duty performers who have caused the damage1 After over

six years of enforcement, on 20 June 2017, the National Assembly amended the SCL 2009 One of the reason for amendment of the SCL 2009 is the new regulation in Constitution 20132

2 How is the right to compensation of the damage sufferer protected in the Law on State compensation in Vietnam?

The SCL 2009 mentions the right to compensation of the damage sufferer, which includes: (i) the right to claim for compensation;

(ii) the right to get compensation;

(iii) the right to request the State to restore their honour;

(iv) the right to complain, denounce or appeal against court judgments or rulings; 1 State compensation law 2009, Article 1.

210 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS (v) the right to be compensated by compensation-liable agencies or to have their compensation claims settled by courts and be notified of the compensation settlement;

(vi) the right to request competent agencies or organizations to restore their legitimate rights and interests;

(vii) the right to provide professional guidance on compensation settlement and to settle problems related to the implementation of the law on State compensation liability

However, the enforcement of those rights are not fully effective One of the limitations of the SCL 2009 is about the restoration of honour This limitation can be seen in the honorary restoration ceremony in Han Duc Long case1 A ceremony held by Vietnam’s Supreme Court to issue an official

apology to a man who was wrongfully sentenced to death for child rape and murder was disrupted when the damage sufferer’s family burst in demanding that authorities find the real killer Some members of the family of the five-year-old victim fought with guards and pulled down banners in the hall A woman was also witnessed screaming loudly as she held the girl’s photo The protest caused a 15-minute delay to the ceremony, which lasted three minutes Tran Van Tuan, Deputy Presiding Judge of the Supreme Court in Hanoi, was flanked by police officers as he read out the official apology to clear Long’s name, admitting “mistakes and shortcomings” Some people still tried to throw slippers at him2 Another shortcoming led to the compensable damages and the procedure to claim compensation,

typically in the case of Huynh Van Nen (Binh Thuan) 2015, when he asked Binh Thuan Court to solve this case and requested advanced funds for compensation However, after receiving his request, Binh Thuan Court negotiated with him, but they could not come up with the damages and compensation level Another example is the case of Nguyen Khac Cong (Nam Dinh) The time he was caught, he was still a student Since he was imprisoned, his family had spent a lot of money visiting him, copying and sending claimants to the authorized body, etc Besides that, his parents also suffered However, according to current regulations, the damage caused to suffering relatives, such as their parents is not compensated SCL 2009 stipulated that only direct damage to the damage sufferer shall be compensated Therefore, the SCL 2009 was amended in 2017

2.1 Regulations on the rights of the damage sufferer in the Law on State compensation in Vietnam

According to the SCL 2017, the damage sufferer has the right to choose the mechanism to claim for compensation as follows:

(i) After the document to be used as a basis for claiming compensation is issued, the sufferer is entitled the right to claim for compensation at the agency directly managing a damage-causing official duty performer;

(ii) After the document to be used as a basis for claiming compensation is issued, the sufferer is entitled the right to claim for compensation at the Court according to Civil procedure This means, 1 Viet Dung, ‘Vietnamese man demands $880,000 for decade on death row under wrongful murder conviction’ (Vnexpress, 23 May 2017) ,<https://e.vnexpress.net/news/news/vietnamese-man-demands-880-000-for-decade-on-death-row-under-wrongful-murder-conviction-3589006.html> accessed 26 June 2018

211

PART - PUBLIC LAW IN VIETNAM: COMPARATIVE CONTEXTS

after the document to be used as a basis for claiming compensation is issued in administrative management, civil proceedings, administrative proceedings, execution of criminal judgments or civil judgments, the damage sufferer has the rights to claim for compensation to the Court according to the Civil procedure;

(iii) Integrate the settlement of a compensation claim in criminal proceedings or administrative proceedings at the court for compensation claims in administrative management, civil proceedings, administrative proceedings, execution of criminal judgments or civil judgments;

(iv) The settlement of a compensation claim in criminal proceedings shall be carried out by the agency directly managing the damage-causing official duty performer Therefore, in criminal proceedings, it is necessary to have the claim solved at the agency directly managing the damage-causing official duty performer first Only after this step can the sufferer claim for compensation at the Court according to the Civil procedure

To claim for compensation, besides the damage sufferers, it is allowed that the heirs of the damage sufferers who are deceased; organizations taking over the rights and obligations of damage-suffering organizations that no longer exist; at-law representatives of damage sufferers that are required by the Civil Code to have at-law representatives; individuals or legal entities authorized by persons specified in Clauses 1, and of Article of SCL 2017 can exercise the right to claim compensation Compared to the SCL 2009, this is one of the amended regulations, which is compatible with the Civil law 2015 The rights of the compensation claimants are regulated more clearly, compared to SCL 2009, such as:

(i) To request one of the agencies specified in Clause 7, Article of this Law to settle the sufferers’ compensation claims and be informed of the results of the settlement of their claims SCL 2017 has amended the regulations on the rights of the subject claiming for compensation Therein, the subject of the right to claim for compensation is divided into two groups, including: the sufferer and the authorized party to claim for compensation One of the rights of human beings is freedom of information, which is the right to access information held by public bodies In case the sufferer has requested to settle the compensation claim, s/he shall be informed of the result of the settlement of the compensation claim This regulation aligns with the international law as well as Vietnamese Law

(ii) To file complaints about, make denunciations or initiate lawsuits against illegal decisions or acts of competent persons in the settlement of their compensation claims in accordance with the laws on complaints, denunciations and administrative procedures; to file complaints about or appeals against the court’s judgments or rulings in accordance with the procedural laws Under Vietnam’s Constitution, lodging complaints and denunciations is a basic right of citizens This right constitutes a guarantee for justice and transparency, and enhances the effectiveness of compensation settlement

(iii) To request other persons to defend his/her lawful rights and interests For sufferers, especially those belonging to the vulnerable group (e.g., women, the elderly, the disabilities, etc.), claiming for compensation are a challenging step Therefore, this regulation has been added to suit the regulations in the Law (e.g., Law on Legal Aid), which allows the sufferers to ask other persons for help to defend their rights and interests

212 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS fairly comprehensive regulations on both institutions and regulations One of the measures to guarantee that the State will exercise this right is to admit the right to receive guide compensation claimants in carrying out the procedures for claiming compensation This public service is provided free of charge This is one of the newly added important regulations on the rights of the sufferer The task of giving guidance to the claimants belongs to the jurisdiction of the State Compensation Department, which is monitored by the Ministry of Justice Besides giving guidance, this Department also has the tasks of providing information and assisting the sufferer to apply the procedure to claim for compensation; developing and managing a database on state compensation work in order to assist the sufferer

2.2 Institutions to guarantee the right to compensation to be fulfilled in practice

The SCL 2017 clearly defines responsibilities of compensation-settling agencies They have such tasks as: (i) receiving and accepting compensation claims for settlement; (ii) restoring the honour of the damage sufferers or requesting agencies directly managing damage-causing official duty performers to so in accordance with this Law; (iii) explaining the rights and obligations of compensation claimants to them in the settlement of their compensation claims; (iv) taking responsibility for the completeness and validity of compensation claim dossiers, and correctness of documents for settlement of compensation claims and compensation settlement decisions; (v) settling complaints and denunciations related to the settlement of compensation claims in accordance with the laws on complaints and denunciations, etc

One of the institutions to ensure the right to compensation of the victim to be fulfilled in practice is the establishment of the Center on Assisting procedures for claiming compensation governed by the State Compensation Department under the Ministry of Justice, which has the functions and jurisdiction in providing legal opinions, assisting the victim in carrying out the procedures for claiming compensation in accordance with the State compensation law Annually, the Center has provided legal opinions to damage sufferer in administrative management, legal proceedings and judgment execution activities Those services are also provided free However, the Center operates on the basis of demands from the damage sufferers This has severely limited the initiative of the Center and its support has not been widely available to those in need Besides, the management agency and the Courts also play an important role in protecting the rights to compensation of the damage sufferer

2.3 State compensation and protection of the right to compensation of the damage sufferer

213

PART - PUBLIC LAW IN VIETNAM: COMPARATIVE CONTEXTS

all levels have accepted 25 civil cases, among which 11 cases have been solved, with the payment amount of billion 563 million 809 thousand Vietnam Dongs 14 cases are still being resolved Thus, the total amount that the State has to compensate, which is specified in the decisions on compensation settlement, the judgments and decisions of the Court, is 28 billion 331 million 372 thousand Vietnam Dongs In 2018, the Ministry of Finance received and allocated funds to pay compensation in a total amount of 11 billion 286 million 923 thousand Vietnam Dong In order to fulfil the sufferers’ right to have their inquiries about the application of the SCL answered, up to now, the Ministry of Justice has received 14 applications and 11 cases that need to respond To reply the requirements or questions from the people or organization, the Ministry of Justice has issued 14 documents to deal with 10 cases At present, the Ministry is cooperating with relevant procedural agencies to answer one remaining case in criminal proceedings

In addition to the achievements mentioned above, the SCL 2017 also has some limitations and problems in the implementation process, as follows:

Regarding people’s legal understanding, although the State agencies have many activities to

introduce and publicize the regulations on SCL 2009 and SCL 2017, the target of those activities is mainly State officers and official duty performers As the result, only a small number of the public are aware of the existence of the State compensation law and the institution concerned

Regarding the scope of regulation, specialized laws (for example, Article 598, Civil Code

2015 stipulating compensation for damages caused by official duty performers; Clause Article 22, Administrative procedural code regulating Point d Clause Article 48, Law on Denunciations, etc.) refer to SCL 2017 to settle compensation However, according to the regulations in State compensation liability 2017, only material damage and mental damage caused by official duty performers under the scope of SCL 2017 shall be compensated As a result, not in every case of damage shall the SCL 2017 be applied Furthermore, there are many ways to understand the term “illegal act of an official-duty performer”, especially in administrative management Therefore, it is unclear whether the illegal act of an official-duty performer should be understood as the act causing damage or it refers to the process of making the document, leading to damage to the sufferer, or both

Regarding coordination in compensation settlement, through the coordination of state compensation

settlement as well as review and listing of cases claiming for compensation in administrative management, legal proceedings and judgment execution activities, it shows that there are still some complicated cases that have not been solved on time in accordance with the law Some examples are cases in administrative management, for example, the cases of Pham Thanh Ha (Quang Ninh), Nguyen Van Nam (Tuyen Quang), Vu Van Van (Thai Binh); in legal proceedings, for example, the cases of Tran Be (Khanh Hoa), Nguyen Van Trieu (Can Tho), Trinh Cong Minh (Dak Lak) Some cases have not been handled, and some cases have problems in applying the law related to the Resolution No 388/2003/NQ-UBTVQH11, which requires consensus of interdisciplinary agencies1 Although SCL 2017 and Decree

No 68/2018/ND-CP have regulations on the coordination of state compensation, there are no detailed regulations on how to coordinate, nor are there the procedures and decentralization of state management authority to that Therefore, up to now, although SCL 2017 has come into force, some cases arising under the provisions of SCL 2009 have not been resolved completely

214 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

2.4 Recommendations to continue protecting the right to compensation of the damage sufferers

Based on the requirements of the Vietnamese Communist Party, the law system in Vietnam has recognized the right to compensation of the damage sufferer State compensation liability has gradually come to life, and its implementation has achieved results in many aspects, significantly contributing to the protection of legitimate rights and interests of individuals and organizations, increasing people’s trust in the operation of the state apparatus However, besides those achievements, the implementation of the State compensation liability is still faced with a number of obstacles One of the reasons for these difficulties comes from the provisions of State compensation liability Therefore, it is necessary to improve and amend some provisions

Amending the regulations of State compensation law

First, the scope of State compensation liability is limited to the specific cases stipulated in the

State compensation law, while other specialized laws (for example, the Civil Code 2015 or the Law on Denunciation 2018) have a much wider coverage Therefore, there are cases eligible for compensation according to specialized laws, but they cannot claim compensation as they are not included within the scope of State compensation law Furthermore, sufferers not know what legal documents they have to consult when asking for compensation Currently, there are some damages which are caused to individuals and organizations, but the responsible entities for which cannot be identified, for example, public works incidents or incidents caused to state-owned properties, etc However, with the current legal mechanism, it is not really effective to protect the rights of the damage sufferers In case of damage to private property, the damage sufferer shall have the right to get compensation However, when the States’ property (public property) causes damage (for example public works like dams or irrigation works) here are still no regulations to govern this situation, which not ensure the rights of the damage sufferer In this case, adding the scope of State compensation liability will be an economic impact tool to enhance the responsibility of organizations and individuals to the safety of the people Therefore, in the near future, it is necessary to research and expand the scope of State compensation liability to ensure the rights of the damage sufferer

Second, the State compensation law and its guiding legal documents acknowledge that the

compensable damages are actual losses incurred However, in the digital age, the loss of future assets may arise Therefore, it is necessary to supplement the compensable damages of future assets For example, due to a wrong trial in a civil case, a director of a company may lose his/her reputation and his/her partner may cancel the business contract which they are going to sign The damage from this business contract can cause losses or lead to bankruptcy of the business Nevertheless, according to SCL 2017, these losses will not be considered as damage The question is whether the damage sufferer has the right to be compensated if he can prove the relationship between the damage and the violation of the official duty performers In this case, it might be considered the compensable damage, according to the State compensation liability

Third, according to civil law, the obligation to prove belongs to the involved parties However,

215

PART - PUBLIC LAW IN VIETNAM: COMPARATIVE CONTEXTS

compensation law, for example, how the approach of the case shall be beneficial for the damage sufferer In case the damage sufferer claims compensation at the wrong compensation agency, but it still settles the compensation, then, according to the SCL 2017, the claim shall be considered as already made but not yet settled Therefore, SCL 2017 shall be applied for settlement compensation

Fourth, one of the conditions to ensure the rights of the damage sufferer is the coordination

between state agencies in settling claims for compensation However, at present, the coordination is not really effective Therefore, it is necessary to promulgate soon a legal document defining the measures to implement state management on state compensation, for example, who what and how to coordinate with each other to settle compensation in time and legally

Enforcing the State compensation law in practice to protect the rights of the damage sufferer First, improving the capacity of the official duty performers and the quality of the public service:

It is necessary to educate official duty performers on the rule of law, which focuses on education of conscience, morality and a sense of professional ethics:

(i) Improving the capacity, qualifications, spirit and responsibility of the official duty performers, especially those conducting proceedings, such as investigators, prosecutors, judges, jurors who contribute to the efficiency of the process of handling and hearing cases

(ii) Enhancing and issuing regulations on personal liability regime for each title of officials and official duty performers, especially the heads of units and people conducting legal proceedings

(iii) Strengthening the inspection and strictly handling the groups and individuals who commit any law, violation to the rights of the citizens Clarifying responsibilities and taking appropriate measures to identify those who conduct legal proceedings that cause wrong accusation

(iv) Continuing to strengthen the education and training of judicial officials, and official duty performers in accordance with the roadmap to ensure sufficient quantity, moral qualities, political bravery and qualified skills, especially for judges at all levels; in accordance with the renewal of the selection mechanism of Judges

Second, establishing an independent agency to protect human rights and to resolve claims and

216 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS this is not its major task and has not been implemented yet1 This agency should be established by the

National Assembly Its members should be elected and dismissed by the National Assembly They shall be responsible to the National Assembly and completely independent of other state agencies

During the time when a national body protecting human rights has not been established, inspection and examination activities should continue to be done Inspection and examination activities are an important measure in preventing, detecting and handling legal violations, improving the management agencies to monitor the work of management objects Therefore, the inspection and examination of state compensation work should be identified as one of the key tasks Inspection and examination activities should be conducted regularly Another measure is to issue regulations on sanctioning in administrative violations in the field of state compensation

Third, continuing to 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: In recent years, the competent state agencies have disseminated, educated and propagandized the regulations on SCL 2017 However, in order to increase people’s awareness of human rights and the rights of the damage sufferer, the authorized agencies need to continue to perform some of the following tasks:

(i) For the compensation settling agency, SCL 2017 and its guiding documents have specified the rights of the damage sufferer Therefore, in case State compensation rises, the compensation settling agency should base on the regulations of SCL 2017 to settle compensation in accordance with the law Notably, according to the provisions of SCL 2017, the deadline for resolution of each step in the compensation settlement process is very short; therefore, each state agency shall firstly perform the assigned tasks in time and update information and regulations on State compensation law

(ii) For the state management agencies on state compensation, to ensure the rights of the damage sufferer, the role of the Ministry of Justice at the central level and the provincial People’s Committee at the local level are indispensable In fact, for most of the cases that occurred a long time ago, with many complicated circumstances, the determination of state liable agency has not been consistent, etc Therefore, the state management agency on state compensation should affirm its role as stipulated in the SCL 2017 in identifying compensation-settling agencies; assisting damage sufferers in carrying out the procedures for claiming compensation; monitoring and urging state compensation work, etc Thereby, it will contribute to the promotion of compensation settlement Within their ambits, the Supreme People’s Court and Supreme People’s Procuracy should direct compensation-settling agencies in performing compensation work, determine the reimbursement liability, execute reimbursement decisions, impose disciplinary forms, and direct People’s Courts and People’s Procuracies coordinate with the competent agencies in performing the state management of state compensation work

(iii) For the Center on assisting procedures for claiming compensation governed by the State Compensation Department, Ministry of Justice, it has the functions and jurisdiction in providing legal opinions, assisting procedures to damage sufferers in carrying out the procedures for claiming compensation in accordance with the State compensation law Annually, the Center provides legal Bui Xuan Duc, Implementation Constitution 2013 on Vietnamese Fatherland Font, political – social organization and

social organization (Scientific conference on Constitution 2013 after 05 years implementation, Hanoi on September

217

PART - PUBLIC LAW IN VIETNAM: COMPARATIVE CONTEXTS

opinions to damage sufferers in administrative management, legal proceedings and judgment execution activities However, the operation of the Center depends on the requirement of the damage sufferer This has severely limited the initiative of the Center and its support has not been widely available to those in need In order to improve the effectiveness of this scheme, it is necessary to perform the following tasks Based on the results of State management of state compensation, it is necessary that the “hot spots” where State compensation may arise should be determined The authorized agency such as the Department of Justice, the Legal Aid Center and especially the Center on Assisting procedures for claiming compensation shall allocate their officials at the hotspots to instruct and give legal opinions to the people who needed./

References

National Assembly of Vietnam, Constitutions 1980, 1992, 2013 National Assembly of Vietnam, Civil Code 1995

National Assembly of Vietnam, State compensation liability law 2009, 2017 International convention on civil and political rights 1966

Bui Xuan Duc, Implementation Constitution 2013 on Vietnamese Fatherland Font, political – social

organization and social organization (Scientific conference on Constitution 2013 after 05 years

implementation, Hanoi on September 28, 2018)

Bao Ha, ‘Dead girl’s family crashes media event after Vietnamese man cleared of murder’ (Vnexpress, 25 April 2017) <https://vnexpress.net/news/news/dead-girl-s-family-crashes-media-event-after-vietnamese-man-cleared-of-murder-3575761.html >

History Institution, Quoc trieu hinh luat – Luat hinh trieu Le (Judicial Publishing house 2013) Human rights office of the High Commisioner, ‘Letter by the High Commissioner to the Foreign

Minister’ <https://www.ohchr.org/EN/HRBodies/UPR/Pages/VNindex.aspx>

Institute of History, Old laws in Vietnam: Quoc trieu hinh luat and Hoang Viet luat le (Education Publishing House, Culture and Information Publishing House 2009)

Ministry of Justice, State compensation liability activities in 2019 (Report No 38/BC-BTP on 12 February, 2019)

Ministry of Justice, State compensation liability activities in 2019 (Report No 38/BC-BTP on February 12, 2019)

Trung Sơn, ‘Nhung vi vua su Viet minh nhan loi’ (Vnexpress, 18 April 2016) <https:// vnexpress.net/tin-tuc/thoi-su/nhung-vi-vua-trong-su-viet-ha-minh-nhan-loi-3388100.html> Tran Hong Nhung, Compensation liability in the feudal of Vietnam, (State and Law Journal No 3, 2015) Viet Dung, ‘Vietnamese man demands $880,000 for decade on death row under wrongful murder

conviction’ (Vnexpress, 23 May 2017),<https://e.vnexpress.net/news/news/vietnamese-man-demands-880-000-for-decade-on-death-row-under-wrongful-murder-conviction-3589006.html> State compensation Department, Functions, tasks, powers and organizational structure of the units

Thank you for evaluating AnyBizSoft PDF Splitter.

A watermark is added at the end of each output PDF file

To remove the watermark, you need to purchase the software from

http://www.anypdftools.com/buy/buy-pdf-splitter.html