Issues regarding compensation for damage caused by multiple parties in Vietnam

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The practical resolution of cases related to the issue of "compensation for damage caused by multiple parties" according to Article 587 of the Civil Code 2015 has encountered some difficulties in the application of the law in specific cases such as: multiple people unintentionally causing damage to the same victim; a case involving intentional and unintentional offenders; and the issue of compensation when an accomplice dies... This raises the need to improve the law for consistent and unified application.

1. Legal provisions on compensation for damage caused by multiple parties in Vietnam

The joint liability for compensation for damage caused by multiple parties is the joint compensation responsibility of those who caused the damage to the victim, arising from illegal acts. Article 587 of the Civil Code stipulates compensation for damage caused by multiple parties as follows: "In cases where multiple parties cause damage, they must jointly compensate the victim. The compensation responsibility of each party is determined based on the degree of fault of each individual; if the degree of fault cannot be determined, they must compensate equally."

Both the Civil Code 2005 and the Civil Code 2015 regulate that those who cause damage together must bear joint liability for compensation, with the responsibility determined based on the degree of fault of each individual; and they must compensate equally if the degree of fault cannot be determined. However, according to the Civil Code 2005, this provision is classified as a specific case of compensation for damage. This stems from the perspective of legislators that this case is one of the exceptional cases in the field of non-contractual compensation for damage (similar to cases of compensation for damage caused by justifiable defense, urgent situations, or by persons performing official duties, etc.). Trial practice has shown that considering the number of entities causing damage and determining the joint compensation obligation of these entities and the degree of compensation for each entity is extremely necessary and must be conducted as a general principle for all cases of non-contractual compensation for damage in general, rather than being considered as a special case of compensation for damage. Therefore, lawmakers have transferred this provision to the general regulations of the responsibility for non-contractual compensation for damage in the Civil Code 2015.

Currently, the issue of non-contractual compensation for damage is implemented in accordance with the spirit of Resolution No. 03/2006/NQ-HDTP dated July 8, 2006 of the Council of Judges of the Supreme People's Court (Resolution No. 03/2006); the spirit of Official Dispatch No. 121/2003/KHXX dated September 19, 2003 of the Supreme People's Court on the resolution of issues related to property and compensation for damage in criminal cases; and the responsibility for compensation for damage in criminal cases with accomplices is guided in Section 8, Part I of Official Dispatch No. 212/TANDTC-PC dated September 13, 2019 of the Supreme People's Court.

According to the provisions of the Civil Code 2005 and the guidance in Resolution No. 03/2006, liability for compensation for damage caused by multiple parties arises when the following 4 conditions are fulfilled: (1) There must be damage caused by multiple parties; (2) There must be illegal acts in causing the damage by multiple parties with unity among them; (3) There must be the fault of those who caused the damage; (4) There must be a causal relationship between the illegal acts of those who caused the damage and the damage that occurred.

However, Article 584 of the Civil Code 2015 changed the approach to the fault element. Accordingly, the determination of the fault of the person causing the damage is not the basis for the liability for compensation for damage, but the focus is on the act of causing the damage, with the requirement to only prove that the act causing the damage is an illegal act sufficient; the liability for compensation for damage of the responsible person or the person causing the damage is excluded in cases of force majeure or when the damaged person is entirely at fault, except for certain cases agreed upon by the parties or regulated by other laws (Article 584, paragraph 2 of the Civil Code 2015).

According to the author, the above approach is a general approach for the issue of non-contractual compensation for damage, while the case of compensation for damage caused by multiple parties arises when these parties have fault, regardless of whether the fault is intentional or unintentional. That means, in addition to cases of unintentional fault that have been separately regulated by the Civil Code (compensation for damage caused by high-risk sources, trees, animals, etc.), all other cases that give rise to joint compensation liability must have fault (intentional or unintentional). Therefore, in order to establish liability for compensation for non-contractual damage, it must be based on the aforementioned 4 conditions, as stipulated in the Civil Code 2005, which is appropriate.

2. Some difficulties and proposals

2.1. Issues related to the application of Article 587 of the Civil Code 2015 in specific cases

Case 1: Multiple individuals unintentionally cause harm to the same victim.

For example: A is the driver of a motorcycle traveling on National Highway 1A with B as the passenger; due to speeding and reckless overtaking, A drives towards the middle of the road and collides with the left side of a car driven by C, causing an accident that results in B's death. The investigation results and other evidence show that C did not reduce speed when avoiding the oncoming vehicle, and veered 15 cm to the left side of the road. The court concludes that both A and C are at fault for the loss of B's life, and therefore, both A and C are responsible for compensating for the damages. However, there are two different opinions on how the law should be applied to resolve the compensation in this case:

First opinion: Article 587 of the Civil Code 2015 should be applied to hold A and C jointly liable for the damages because both A and C are at fault for the harm suffered by B. In other words, the illegal actions of A and C are the causes of the fatal consequences. Furthermore, Article 587 of the Civil Code 2015 only provides a general provision of "jointly causing harm" without specifying whether it was intentional or unintentional, so joint liability for compensation still applies in this case. Article 288 of the Civil Code 2015 also raises the issue of joint obligations without mentioning intentional or unintentional faults.

Second opinion: Joint liability for compensation only arises when individuals with illegal actions "intentionally" cause harm, or in other cases prescribed by the law. In this case, although objectively speaking, the actions of A and C occurred simultaneously and both caused harm to B, there is no "intentional" collusion between A and C, and there is no joint liability between them. Therefore, Article 587 of the Civil Code 2015 cannot be applied to hold A and C jointly liable for the damages.

The author agrees with the first opinion. This is because "unintentional" refers to the situation where the subject causing harm lacks unity of will in causing the harm; they are not aware of the illegality of their actions and the actions of others carried out with them, thus there is no relationship between them. However, the issue of compensation arises from their shared fault, which caused harm to the victim, and they must compensate according to their respective faults, leading to joint liability for compensation (if determined) or equal liability. This means that the liability for compensating the damages caused by jointly causing harm has already arisen, so it is appropriate to apply Article 587 of the Civil Code 2015 to hold A and C jointly liable for the damages.

Case 2: A case where one person commits an intentional offense and another person commits an unintentional offense.

For example: HNC Company is a state-owned company. During the construction of its office building, Nguyen Van A is the General Director responsible for overall management, while Doan Van H and Nguyen Huy C are directly in charge of the construction project. During the construction process, H and C violated the regulations on the management and use of public investment capital, causing damage to the company's assets worth 250 million VND. H and C were charged with the offense of violating the regulations on the management and use of public investment capital, causing serious consequences. A, as the General Director, failed to inspect, supervise, and approve the use of the company's funds for investment in accordance with regulations, and also caused damage to the company's assets along with H and C, so A was charged with the offense of negligence causing serious consequences. The question is how to resolve the compensation for the damages.

First opinion: Although A, H, and C committed different offenses, they all caused damage to the company's assets worth 250 million VND, so Article 587 of the Civil Code 2015 should be applied to determine the level of fault of each individual and hold A, H, and C jointly liable for compensating the damages to HNC Company.

Second opinion: Despite causing harm together, A committed an offense unintentionally, while H and C committed the offense intentionally and were the main persons responsible in the case. Therefore, joint liability for compensation should only be imposed on H and C. Thus, Article 587 of the Civil Code 2015 should only be applied to H and C to hold them jointly liable for compensation. Although A still bears the responsibility for compensation, since A did not commit the offense intentionally along with H and C, there is no joint liability for compensation, and Article 587 of the Civil Code 2015 should not be applied to A.

The author agrees with the first opinion, because, similar to the first example, in this case, the fault of the subjects causing the damage is different, there is no unity in terms of intention to cause damage, there are subjects who commit offenses with unintentional and intentional faults, so there is no relevance. However, the issue of compensation arises from the fact that they both have faults and therefore cause damage to the victim and must compensate for the part of the fault they have caused. This means that liability for compensation for damage caused by jointly causing damage has arisen, so applying Article 587 of the Civil Code 2015 to force A, H, and C to jointly compensate for the damage is appropriate.

2.2. Compensation issue if one of the accomplices passes away

Example: Two individuals, H and V, jointly commit the act of stealing Anh K's motorcycle. They spend all the money from selling the motorcycle and are unable to recover it. Based on the purchase records and Anh K's statement, the motorcycle is valued at 30 million VND. During the period of temporary detention, H commits suicide by hanging. In the first-instance trial, in terms of civil liability, Anh K demands that V compensate for the entire assessed value of the motorcycle, but V only agrees to compensate for half of the value, arguing that both H and V participated in the theft and shared the money equally. The first-instance judgment also orders V to compensate for half of the value of the motorcycle to Anh K, considering H's death. Therefore, the trial panel only considers the compensation for the victim to be half of the value of the motorcycle, based on the portion of the benefit that defendant V received from selling the motorcycle. In relation to this case, there are two situations to consider:

Case 1: Through verification at the local level, it is found that H has a house that is jointly owned with his wife and did not leave a will before his death. The property has been divided through an inheritance settlement.

First opinion: The court should require the inheritors of H's property to compensate for H's obligation in the case.

Second opinion: H has died, the court will suspend the case against H, and H's responsibility in the case no longer exists. Moreover, H's property has been divided through inheritance, so it is determined that H no longer has any property, and therefore, H has no obligation to compensate.

According to the author, the inheritors of H's property should be held responsible for compensating on behalf of H, as this is an obligation left by the deceased person according to Article 615 of the Civil Code 2015, even though the inherited property has been divided. Therefore, to ensure the rights of the victim in the case, the first opinion is appropriate. However, specific guidance on this case is needed according to Article 615 of the Civil Code 2015 on the implementation of the obligation of property left by the deceased.

Case 2: H has passed away, and through verification at the local level, it is found that H did not have any separate property left before his death. There are two opinions, as follows:

First opinion: I agree with the court's judgment because, through verification at the local level, it was found that H did not have any separate property left before his death. According to Article 587 of the Civil Code 2015, in the case of multiple individuals causing damage, those individuals must jointly compensate the victim. Both H and V committed theft together and benefited equally, so it is reasonable to determine that V should compensate for half of the value of the motorcycle.

Second opinion: The court's judgment is not justified and causes harm to the rights of the victim. In this case, H has died and does not have any property left, so V should compensate for the entire damage.

The author agrees with the second opinion because V is at fault for the entire damage caused to the victim. Article 587 of the Civil Code 2015 does not specify that the offender must be responsible for a proportional share of the benefit obtained from the stolen vehicle, as determined by the court. In fact, V did not steal half of Anh K's motorcycle, but the entire motorcycle. Furthermore, in this case, the prosecuting agencies based their proceedings on the total value of the assets involved in the theft, which was 30 million VND, not dividing it in half to pursue criminal responsibility against V.

Based on the above difficulties and shortcomings, the author proposes the following improvements to the law:

First, amend and supplement the provisions of Article 587 of the Civil Code 2015 to be more in line with practicality in determining liability in cases of "compensation for damage caused by multiple individuals." Specifically, add: "In the case of multiple individuals causing damage due to intentional or unintentional faults..."

Second, supplement the content of Article 288 of the Civil Code 2015 on the implementation of joint obligations. Specifically: "In the case where one of the individuals with joint obligations has died, the other individuals with joint obligations must fulfill the joint obligations of the deceased individual..."

Third, there is a need for a replacement document for Resolution No. 03/2006 guiding the application of non-contractual compensation according to the Civil Code 2015, which specifically regulates the basis for the emergence of joint liability for compensation for damage caused by multiple individuals; specifies specific cases of compensation for non-contractual damage caused by multiple individuals that have encountered the aforementioned difficulties, in order to have a basis for applying in a consistent and unified manner.

Nguyen Xuan Ky

Source: Kiemsat.vn

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Key word: Compensation | accomplices | in Vietnam | Vietnam | Civil Code |

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