If people die when rushing into potholes, will the Department of Transport be responsible in Vietnam?

If people die when rushing into potholes, will the Department of Transport be responsible in Vietnam?

Article 584 of the 2015 Civil Code stipulates grounds giving rise to liability to compensate for damage, according to which:

1. A person intentionally or unintentionally harming the life, health, honor, dignity, reputation, property, or other legal rights or interests of a person, must compensate for such damage, unless otherwise prescribed in this Code or relevant laws.

2. The person who causes damage shall be discharged from liability for compensation in case where the damage incurs due to force majeure events or at entire fault of the aggrieved person, unless otherwise agreed or otherwise prescribed by law.

3. If a property causes damage, its owner or possessor must compensate for the damage, except for the damage prescribed in Clause 2 of this Article.

According to Article 48 of the 2008 Road Traffic Law, road administration and maintenance, specifically as follows:

1. Road maintenance means activities of maintaining and repairing roads in order to preserve technical standards of roads currently in use.

2. Roads, after being put into use, must be administered and maintained as follows:

a/ Monitoring of the conditions of road works; organization of traffic; examination and inspection of the protection of road infrastructure facilities;

b/ Regular maintenance and regular and irregular repair.

3. Road administration and maintenance responsibilities are defined as follows:

a/ The Ministry of Transport is responsible for the national highway system;

b/ Provincial-level People’s Committees are responsible for the systems of provincial roads and urban roads. The administration and maintenance of systems of district and commune roads shall be prescribed by provincial-level People’s Committees;

c/ Special-use roads and roads not under state management and exploitation and roads built with non-state budget funding sources shall be administered and maintained by investors according to regulations.

4. The Minister of Transport shall issue regulations on road administration and maintenance.

In Clause 3, Article 5 of Circular 37/2018/TT-BGTVT stipulating responsibilities for management, operation and maintenance of road works, as follows:

3. The Department of Transport shall take responsibility for local road network as follows:

a) manage, operate and maintain roads under management;

b) exercise other rights and fulfill other obligations regarding management, operation and maintenance of road works in local road network in accordance with law provisions.

According to this Article, the accident occurred in the area of ​​​​Road 1, Binh Hung Hoa B ward, Binh Tan district. Based on regulations on road management and maintenance, the responsibility for maintaining, repairing and managing this traffic work belongs to the Department of Transport of Ho Chi Minh City, Vietnam. 

If the cause of the accident is due to an incident or damage to the road, the responsibility for compensation entirely belongs to the Department of Transport of Ho Chi Minh City. 

In case the cause of the accident is due to a force majeure situation or the victim does not comply with traffic laws in Vietnam, does not observe danger warning signs, the Department of Transport will not be responsible for compensation for damage that occurs.

Can people's deaths when rushing into potholes be turned into offences against regulations of maintenance, repair and management of traffic works in Vietnam?

Pursuant to Clause 93, Article 1 of the Law amending the Penal Code 2017 stipulates as follows:

1. A person who is in charge of maintenance, repair or management of road traffic, rail traffic, waterway traffic or air traffic works and commits any of the following acts which causes ≥ 61% WPI for another person or causes a total WPI of 61% - 121% for more than one person or causes property damage assessed at from VND 100,000,000 to under VND 500,000,000 shall face a penalty of 06 – 36 months’ imprisonment:

a) Failure to follow or fully follow regulations on maintenance, repair and management of traffic works which make them fail to assure technical safety and fail to satisfy technical standards;

b) Failure to repair damaged traffic works that threaten traffic safety;

c) Failure to follow or correctly follow instructions on traffic control, placement of signs, milestones, fences for prevention of accidents when a traffic work is damaged or under repair or maintenance;

d) Failure to follow or correctly follow instructions on inspection and implementation of measures for assurance of traffic safety on a dangerous mountain pass, road segments where landslide, stone fall, or flood is likely, or unsafe road segments;

dd) Failure to promptly take measures for prevention of accidents when receiving information about a damaged traffic work under the offender's management;

e) Failure to follow or correctly follow instructions on placement of warning signals during construction or repair of a traffic work;

g) Failure to clean up warning signs, fences, equipment and materials after the construction is complete;

h) Other violations against regulations on maintenance, repair and management of traffic works.

2. This offence committed in any of the following circumstances carries a penalty of 02 - 07 years' imprisonment:

a) The offence results in the death of 02 people;

b) The offence causes a total WPI of 122% - 200% for more than one person;

c) The property damage caused by the offence is assessed at from VND 500,000,000 to under VND 1,500,000,000.

3. This offence committed in any of the following circumstances carries a penalty of 06 - 15 years' imprisonment:

a) The offence results in the death of ≥ 03 people;

b) The offence causes a total WPI of ≥ 201% for ≥ 03 people;

c) The property damage caused by the offence is assessed at ≥ VND 1,500,000,000.

4. The offender might also be liable to a fine of from VND 10,000,000 to VND 50,000,000 or prohibited from holding certain positions or doing certain jobs for 01 - 05 years.

According to the above regulations in Vietnam, when driving a car in accordance with the law but having an accident caused by hitting a pothole and causing 01 death, a case can be prosecuted for offences against regulations of maintenance, repair and management of traffic works with a penalty of imprisonment from 6 months to 3 years. 

In addition, the offenders may also be subject to a fine of between VND 10,000,000 and 50,000,000, a ban from holding certain posts, practicing certain professions or doing certain jobs for 1 to 5 years in Vietnam.

Can people who die when rushing into potholes be prosecuted for negligence that results in serious consequences in Vietnam?

Pursuant to Clause 128, Article 1 of the Law amending the Penal Code 2017 stipulates:

1. Any person who negligently fails to perform or correctly perform his/her in any of the following circumstances, except in the circumstances specified in Article 179, Article 308 and Article 376 hereof, shall face a penalty of up to 03 years' community sentence or 06 - 60 months' imprisonment:

a) The offence results in the death of a person;

b) The offence causes ≥ 61% WPI for another person;

c) The offence causes a total WPI of 61% - 121% for more than one person.

d) The property damage caused by the offence is assessed at from VND 100,000,000 to under VND 500,000,000.

2. This offence committed in any of the following circumstances carries a penalty of 03 - 07 years' imprisonment:

a) The offence results in the death of 02 people;

b) The offence causes a total WPI of 122% - 200% for more than one person;

c) The property damage caused by the offence is assessed at from VND 500,000,000 to under VND 1,500,000,000.

3. This offence committed in any of the following circumstances carries a penalty of 07 - 12 years' imprisonment:

a) The offence results in the death of ≥ 03 people;

b) The offence causes a total WPI of ≥ 201% for ≥ 03 people;

c) The property damage caused by the offence is assessed at ≥ VND 1,500,000,000.

4. The offender might also be prohibited from holding certain positions or doing certain jobs for 01 - 05 years.

With this provision in Vietnam, the person with the position and authority to maintain, repair and manage the work fails to repair the work in time, leading to death, that person may be subject to community sentence for up to 3 years or a fine of imprisonment from 6 months to 5 years. 

In addition, offenders are also banned from holding certain posts, practicing certain professions or doing certain jobs for between 01 and 05 years in Vietnam.

Best Regards!