Will the damage caused by the enforcer be compensated by the State of Vietnam? When isn’t the State required to compensate for damage?
Will the damage caused by the enforcer be compensated by the State of Vietnam?
Pursuant to Article 1 of the 2017 Law on State Compensation Liability in Vietnam, which clearly states the scope of regulation of the State Compensation Liability, the State is responsible for compensating for damage to individuals and organizations suffering from damage caused by law enforcers in administrative management, legal proceedings and judgment enforcement activities.
In which, damage may include material damage, mental damage caused by enforcers within the scope of the State compensation liability as prescribed.
Will the damage caused by the enforcer be compensated by the State of Vietnam? When isn’t the State required to compensate for damage?
What are the grounds for determination of state compensation liability?
Pursuant to Clause 1, Article 7 of the 2017 Law on State Compensation Liability in Vietnam:
Grounds for determination of state compensation liability
1. The state shall have compensation liability when all of the following grounds are given:
a) The availability of any of the proof to define the law enforcer's illegal act and a compensation claim prescribed in Clause 2 hereof;
b) The sufferer's actual damage within the State compensation liability as prescribed in this Law;
c) The existence of the causal link between actual damage and the damaging act.
Thus, the State shall have compensation liability when all of the following grounds are given:
- The availability of any of the proof to define the law enforcer's illegal act and a compensation claim prescribed in Clause 2, Article 7 of the 2017 Law on State Compensation Liability in Vietnam;
- The sufferer's actual damage within the State compensation liability as prescribed in the 2017 Law on State Compensation Liability in Vietnam;
- The existence of the causal link between actual damage and the damaging act.
When isn’t the State required to compensate for damage?
Pursuant to Article 32 of the 2017 Law on State Compensation Liability in Vietnam stipulating the non-compensation damage as follows:
(1)The state shall not compensate for damage caused in the following circumstances:
- Damage occurs entirely due to the fault of the suffer;
- Damage occurring objectively unpredictable and irreparable even though the law enforcers has applied all necessary measures and to the best of his/her ability;
- Damage occurring in circumstances where the law enforcer, in order to avert a threat actually and directly threatening the public interest, the legitimate rights and interests of the sufferer or another person, has no alternative but to take an act which would cause lesser damage than the damage to be prevented, except for the case prescribed in Clause 6 of Article 23 of the 2017 Law on State Compensation Liability in Vietnam.
(2) Apart from damage prescribed in Clause 1 of this Article, in criminal procedures, the State shall not compensate for damage caused in the following circumstances:
- Damage occurs in cases where a person faced with criminal prosecution is eligible for exemption from criminal liability according to the provisions of the Criminal Code;
- Damage caused due to the sufferer’s making false declarations or providing other untruthful documents or exhibits in order to plead guilty for other persons or to conceal the offenses;
- Damaged caused owning to the fact that the person who committed violation of law shows clear signs of offense constitution, against whom criminal cases was instituted or who was prosecuted in criminal cases instituted at the request of victims, but the cases were terminated as the victims have withdrawn their requests for institution of criminal cases;
- Damage caused owning to the fact that the person against whom criminal case was instituted or who was prosecuted and tried strictly in accordance with legal documents effective at the time of prosecution and trial but at the time when the judgment or decision take effects new legal documents are promulgated and took effect after the date of prosecution or trial he/she no longer bears criminal liability.
(3) Apart from the damage prescribed in (1), in the course of civil procedures or administrative procedures, the State shall not pay compensation for damage caused when the law enforcer applies the temporary emergency measures in accordance with the request that unluckily causing damage to the person faced with temporary emergency measures or to a third party.
The person who requests the court to apply temporary emergency measures improperly, causing damage to the accused or to the third party, shall have to pay compensations to the victims according to the provisions of the civil procedure legislation.
(4) In addition to the damage prescribed in (1), in civil judgment enforcement, the State shall not pay compensation for damage caused when the law enforcer has applied judgment enforcement measures strictly according to request of the party causing damage. The person who requests the executor to apply temporary emergency measures improperly, causing damage to the accused or to the third party, shall have to pay compensations to the victims according to the provisions of the civil procedure legislation.
Nguyễn Thị Hồng Nhung
