New points about regulations on damage to be compensated of the Law on State Compensation Liability 2017 of Vietnam

1. The need to amend the provisions on damage to be compensated of the Law on State Compensation Liability 2009 of Vietnam

The promulgation of the Law on State Compensation Liability 2009 of Vietnam ended 10 years of the implementation of Decree No. 47-CP dated May 03, 1997 of Vietnam’s Government on the settlement of compensation for damage caused by state officials, employees or competent persons of legal proceedings agencies and Resolution No. 388/2003/NQ-UBTVQH11 dated March 17, 2003 of the National Assembly Standing Committee on compensation for wrongful victims caused by competent persons in criminal proceedings. Basically, the Law on State Compensation Liability 2009 inherited the provisions in the two documents mentioned above, in which the provisions on damages were referred to and applied to the provisions of the Civil Code 1995. However, the effective Law on State Compensation Liability 2009 unified the State's compensation regulations at the legal level. Therefore, when determining damages for compensation, only apply the provisions of the Law on State Compensation Liability and its guiding documents without applying the Civil Code and documents guiding the implementation of the Civil Code.

The Law on State Compensation Liability 2009 of Vietnam stipulates that the compensation settlement must be conducted on the basis of negotiations between compensation-liable agencies and sufferers or their lawful representatives. This is one of the important principles in civil legal relations that comes from the legal policy perspective when developing the Law. However, to ensure that this principle is implemented equally in practice between state agencies and victims, the Law on State Compensation Liability 2009 stipulates on the basis of compliance with the provisions on compensable damages in the provisions of the Civil Code on compensation for non-contractual damages but more specific than the Civil Code 2005 regarding the determination of damages to be compensated and the level of compensation to serve as a basis for the agency responsible for compensation to negotiate and make a decision on compensation settlement.

The Law on State Compensation Liability 2009 of Vietnam stipulates types of compensatory damages in 07 articles (from Article 45 to Article 51), including: Damage caused by asset infringement (Article 45); Damage due to loss of or decrease in actual incomes (Article 46); Damage due to mental suffering (Article 47); Material loss due to the death of sufferers (Article 48); Material loss due to health damage (Article 49); Regulation on return of assets which are seized, held in custody, distrained or confiscated (Article 50); Regulation on honor restoration for sufferers in criminal proceedings (Article 51).

Although it was not clearly expressed in an article of Law, however, through regulations on damages, it can be seen that the Law and its guiding documents define the damages to be compensated as actual damages, that is, the actual damages suffered by the injured person due to the illegal acts of the person performing their official duties as prescribed from Article 45 to Article 51 of the Law on State Compensation Liability 2009. Accordingly, the way to determine damage is divided into two types, the first type is how much damage is compensated for, such as damage caused by property infringement, the second type is damages that have been specifically quantified for damages that are difficult to determine such as damages due to mental suffering.

The provisions on damage in the Law on State Compensation Liability 2009 of Vietnam and the guiding documents that have been implemented have contributed to making it easier for damaged people to exercise their rights when claiming compensation in all three areas of administrative management, litigation and judgment enforcement, as well as help state agencies responsible for compensation carry out compensation settlement in accordance with the provisions of law.

Besides the results achieved, the provisions on damages of Law on State Compensation Liability 2009 of Vietnam also have some limitations and inadequacies that cause the compensation settlement by the agency responsible for compensation to not meet the deadline prescribed by law, and the quality of compensation settlement remains low. Therefore, there are still many cases where the injured person does not agree with the compensation settlement results and sues in court.

One of the causes leading to the above limitations and inadequacies comes from the provisions on compensation damages in the Law, specifically:

(1) The actual damages to be compensated have not yet been estimated so that the damages to be compensated have not been fully specified, which leads to the fact that compensation settlement between the agency responsible for compensation and the damaged person facing many difficulties and confusion, especially in negotiations, it is difficult to agree on the damages to be compensated. For example: There are no regulations on mental damage in administrative management activities, interest on fines for violations of civil economic transactions, and restoration of some rights and interests of the damaged person such as job restoration, regimes and policies related to employment, membership in organizations etc. or some types of damage have been supplemented with guidance in circulars and joint circulars guiding the implementation of the State's compensation responsibilities. However, the Law on State Compensation Liability has not yet specified specifically, so the legality of the regulations is not high, at the same time, there is no consensus in determining the types of damages to obtain documents as a basis for claiming compensation such as the costs that the injured person has spent in the process of making complaints, denunciations, and participating in proceedings to obtain documents determining the illegal acts of the person performing public duties.

(2) Some compensated damages have not been quantified or the specific damage level is no longer consistent with reality, causing difficulties in the compensation settlement process. For example: Damages due to lost or reduced actual income, material damage due to the death of the injured person, material damage due to violation of health.

In addition, the consistency and synchronization between the provisions on damages in the Law on State Compensation Liability 2009 with the new provisions of the Civil Code 2015 of Vietnam on non-contractual damage contracts is no longer guaranteed. The Civil Code 2015 has added a number of open provisions for damages due to property infringement, damages due to infringement of life, damages due to infringement of honor, dignity, and reputation or increase more than 1.5 times compared to the Civil Code 2005, the level of compensation for mental losses in cases of damage such as damage due to violation of health and damage due to violation of life.

2. New provisions on damage to be compensated of the Law on State Compensation Liability 2017 of Vietnam

2.1. Rules for state compensation relating to regulations on damage to be compensated

The Law on State Compensation Liability 2017 of Vietnam supplements 01 article on rules for state compensation (Article 4), which regulates issues that are cross-cutting in the content of the Law, directly related to the regulations and application of regulations on compensatory damages. To be specific:

Firstly, the Law on State Compensation Liability 2017 of Vietnam specifies that the state compensation shall be paid as prescribed in this Law. With such provisions on the legal framework governing the State's compensation liability, when settling compensation, the compensation agency shall only be allowed to verify damages and negotiate with the claimant for damages specified in the Law on State Compensation Liability 2017.

Secondly, with regard to compensation claims, the Law on State Compensation Liability 2017 of Vietnam retains the principles for a specific relationship on compensation for non-contractual damages in the Law on State Compensation Liability 2009 and the Civil Code, which are to ensure "timeliness, openness, equality, goodwill, honesty, and legality" and “conducted on the basis of negotiation” during the settlement process between the compensation settlement agency and the compensation claimant.

This principle continues to require the provisions on damages in the Law on State Compensation Liability 2017 to be specified to ensure the determination of compensable damages, compensation levels served as a basis for the compensation settlement agency and the compensation claimant to negotiate with each other on the basis of "equality" and "negotiation".

Thirdly, with regard to the State's compensation liability in cases where the damaged person is at fault in causing the damage, the Law on State Compensation Liability 2017 has legislated the content stipulated in joint circulars into a principle of State compensation. Accordingly, the State only compensates for the damage after deducting the damage corresponding to the fault of the damaged person. This regulation is in accordance with the provisions on compensation principles of the Civil Code 2015 of Vietnam.

2.2. Damage to be compensated according to the Law on State Compensation Liability 2017 of Vietnam

In comparison with the 07 articles of the Law on State Compensation Liability 2009, there are 11 articles on damage to be compensated in the Law on State Compensation Liability 2017 which are fully amended as follows:

Firstly, regarding the method of determining the damages to be compensated, the Law on State Compensation Liability 2017 of Vietnam regulates the damages to be compensated in a detailed and specific manner, specifying the types of damages as well as the method of determining and the basis for determining each type of damage to be compensated without providing generalizations or general principles. This regulatory method is consistent with the direction of shortening the time limit for resolving compensation claims prescribed by the Law on State Compensation Liability 2017, because in order to shorten the time limit for resolving compensation claims, the types of damages need to be specified, facilitating verification of damages as well as negotiation of compensation during the claim settlement process.

Secondly, in each group of damages to be compensated, the Law on State Compensation Liability 2017 stipulates more specific types of damages to be compensated. The supplement of the types of damages to be compensated is because, in practice, many types of damages have arisen that the damaged person has actually suffered but is not compensated because the Law on State Compensation Liability 2009 did not regulate. Therefore, in this amendment, based on the results of summarizing 6 years of implementing the Law on State Compensation Liability, the Law on State Compensation Liability 2017 supplements a number of types of compensatory damages to the damage groups.

Thirdly, increasing the level of damages due to mental suffering in some cases such as: being held in custody, detained or serving an imprisonment penalty; health damage; being  prosecuted and brought to trial without being held in custody or detention, or serving sentences; being tried, sentenced to non-custodial reform, or given a suspended prison sentence without being held in custody or detention. The increase in compensation for the above damages is in accordance with the provisions of the Civil Code 2015 of Vietnam and socio-economic development conditions, as well as further ensuring the legitimate rights and interests of the damaged person.

2.2.1. Damage verification

The Law on State Compensation Liability 2017 of Vietnam supplements 01 article to verify the damage to be compensated (Article 22), which specifies general principles that unify the application of law in determining compensable damages, specifically as follows:

(i) Damage to be compensated refers to damage that actually incurs, interests and other expenses as prescribed in this Law.

(ii) Amount of damages to be compensated shall be determined at the time of acceptance of compensation claim prescribed in Article 43 of this Law or at the time when the first-instance court determines amount of damages in the cases prescribed in Clause 1 Article 52 and Article 55 of this Law. If a claimant institutes a lawsuit requesting the court to settle the compensation claim as prescribed in Clause 2 Article 52 of this Law, the amount of damages shall still be determined at the prior time of acceptance of compensation claim.

(iii) The period of time as the basis for determining damage to be compensated prescribed in Clauses 3, 4 and 5 Article 23, Article 24, Clauses 1, 2 and 3 Article 25, Clauses 1, 2, 3 and Point a Clause 4 Article 26, Clause 3 Article 27 of this Law shall begin from the date on which the damage has actually incurred until its termination.

In comparison with the Law on State Compensation Liability 2009, issues on the principles of determining damages in the Law on State Compensation Liability 2017 have been clearly expressed, legislated, supplemented and concentrated in one article. For the time of calculating the value of damages to be compensated for the settlement mechanism at the agency directly managing the person on duty who caused the damage, the Law on State Compensation Liability 2017 has determined uniformity at the time of accepting compensation claims instead of general regulations at the time of compensation settlement. This regulation helps the agency directly managing the person performing official duties causing damage to easily determine a time to calculate the value of the damage to help settle compensation more conveniently. Besides, the Law on State Compensation Liability 2017 also uniformly stipulates that the time to calculate the damage value is the time to determine the damage value for the compensation settlement mechanism to initiate a lawsuit to request the Court to resolve the compensation claim as soon as there is a document as a basis for claiming compensation and the combined mechanism for resolving compensation claims in criminal proceedings and administrative proceedings at Court.

2.2.2. Damage caused by asset infringement

In comparison with Article 45 of the Law on State Compensation Liability 2009, Article 23 of the Law on State Compensation Liability 2017 of Vietnam has fully amended this provision as follows:

Firstly, amending the regulation that the time to determine the current state of the property as a basis for calculating compensation is the time the damage occurs. The regulation on "Time to determine the current status of assets" is a regulation supplemented on the basis of "legalization" from the provisions of a number of documents guiding the implementation of the Law on State Compensation Liability 2009.

Secondly, regulating more specifically the determination of damage arising from non-use and exploitation of assets, the damage is determined as actual lost income. For assets on lease on the market, lost actual incomes will be determined commensurate with the average monthly rentals of like-kind assets or assets with the same technical standards, properties, utility and quality at the time prescribed in Clause 2 Article 22 of the Law on State Compensation Liability 2017 of Vietnam. For assets not on lease on the market, lost actual incomes will be determined as average 3-month incomes brought about by the damaged assets under normal conditions before the time the damage is caused.

Thirdly, supplementing the provision on damage in cases that a sufferer cannot perform civil or commercial transactions. If a sufferer cannot perform civil or commercial transactions which have been effective and paid fines for his/her breach of obligations in these transactions, the damages to be compensated is the amount of fines as agreed and interests thereof. If such fine is an interest-bearing loan, interests thereof shall be considered legitimate as prescribed in the Civil Code. If such fine is a not interest-bearing loan, interests thereof shall be considered interests accruing due to late payment in case of absence of an agreement as prescribed in the Civil Code at the time prescribed in Clause 2 Article 22 of the Law on State Compensation Liability 2017. This new regulation has been supplemented to better ensure the legitimate rights and interests of victims, especially businesses.

Fourthly, amending the provision on calculating interest rates in accordance with the provisions of the Civil Code for the basis for calculating damages is the interest on money paid into the state budget according to the decision of a competent state agency or confiscated money, judgment enforcement, money placed as security according to the decision of a competent authority in case that money is not an interest-bearing loan (Clause 4 Article 23) and the interest on fines due to breach of obligations in civil or economic transactions in cases where the fine is not an interest-bearing loan (Clause 5 Article 23). Accordingly, the interest calculation basis is amended from "base interest rate announced by the State Bank of Vietnam at the time of compensation settlement" to "interest arising due to late payment in case there is no agreement according to the provisions of the Civil Code".

Fifthly, supplementing the damage caused due to beyond an emergency circumstance, in which the damage to be compensated shall be the part of damage occurs to be compatible with the regulations on damages not compensated by the State (Article 32 of the Law on State Compensation Liability 2017) to avoid misunderstanding that the State does not compensate in all cases of damage occurring due to urgent situations.

2.2.3. Damage due to loss of or decrease in actual incomes

In comparison with Article 46 of the Law on State Compensation Liability 2009, Article 24 of the Law on State Compensation Liability 2017 of Vietnam selectively inherits current regulations on damages due to lost or reduced real income, "legitimizing" many provisions in documents guiding the implementation of the Law on State Compensation Liability 2009. On that basis, the regulations on damages due to lost or reduced actual income have been comprehensively revised in the direction of classifying cases of calculating the actual income of the damaged person being an individual or an organization.

Lost or decreased actual income of a sufferer being individual shall be determined as follows:

(i) Stable income earned from salary or wage shall be determined according to amount of sufferer’s salary/wage during the period in which his/her salary/wage has been lost or decreased;

(ii) Unstable income earned from salary or wage shall be determined according to his/her average income of three consecutive months prior to the time when the damage occurs during the period in which his/her salary/wage has been lost or decreased;

(iii) Unstable seasonal income is the average income of local worker/employee at the same level during the period in which his/her salary/wage has been lost or decreased; If the average income of local worker/employee at the same level is unidentifiable, the lost or decreased actual income to be compensated shall be one day’s minimum wage applying to the region where the sufferer has been residing for one day of damage.

The Law on State Compensation Liability 2017 of Vietnam has quantified the damages to be compensated in cases where the average income of workers of the same type in the locality cannot be determined and amended the basis for quantifying compensation from "general minimum wage" (now "base salary") to "regional minimum wage" and supplemented regulations on how to calculate regional minimum wage days. One day’s regional minimum wage equals one month’s regional minimum wage prescribed by the state divided by 26 days to ensure compliance with the income level, living conditions, and socio-economic conditions of each region and region, concurrently, to better ensure the rights of victims, because the current regional minimum wage is higher than the base salary.

For victims who are damaged organizations, the Law supplements regulation on how to calculate actual lost or reduced income, which is determined to include income according to the provisions of the law on corporate income tax. The income to be compensated shall be determined according to its average income of 2 consecutive years prior to the time when the damage occurs. The average income shall be determined according to the financial statement of the organization as per the law. If the organization has been found for less than 2 years until the time when the damage occurs, the income to be compensated shall be determined according to the average income during its actual operation as mentioned in its financial statement as per the law.

2.2.4. Material loss due to the death of sufferers and material loss due to health damage

In comparison with Articles 48 and 49 of the Law on State Compensation Liability 2009, Articles 25 and 26 of the Law on State Compensation Liability 2017 of Vietnam selectively inherits current regulations on material loss due to the death of sufferers and material loss due to health damage, "legalizes" many regulations in documents guiding the implementation of the Law on State Compensation Liability 2009 in specific areas, which have so far been implemented stably and without problems in practice. Concurrently, the Law on State Compensation Liability 2017 also regulates and quantifies a number of specific types of damages in the two groups of damages mentioned above with specific quantitative levels to facilitate compensation agencies in the process of verifying damages and resolving compensation claims.

Specifically, the Law on State Compensation Liability 2017 quantifies the compensation level for these two types of damages in these cases as "regional minimum wage" instead of "minimum wage" as formerly prescribed to be consistent and consistent with the provisions on damages due to lost or reduced actual income (Article 24).

Concurrently, the Law on State Compensation Liability 2017 also quantifies and specifies levels of compensation: (i) Expenditures on health fostering for the sufferer before his/her death shall be determined as equal to one-day minimum wage applying to the region where the health facility is located for one day of medical examination and treatment based on the number of days stated in the medical record; (ii) Expenditures on caring for the sufferer’s carer during medical examination and treatment period before his/her death shall be determined as equal to one-day minimum wage applying to the region where the health facility is located for one day of caring.

In comparison with Articles 48 of the Law on State Compensation Liability 2009, the material loss due to the death of sufferers specified in Article 25 of the Law on State Compensation Liability 2017 of Vietnam is more specific, in particular, expenditures on caring for the sufferer’s carer during medical examination and treatment period before his/her death shall be determined as equal to one-day minimum wage applying to the region where the health facility is located for one day of caring.

Moreover, Article 26 of the Law on State Compensation Liability 2017 annulled the reference to compensation due to loss of or decrease in actual incomes compared to Article 49 of the Law on State Compensation Liability 2009. The annulment of this content is to unify the provisions of the laws, accordingly, previously, the Law on State Compensation Liability 2009 only stipulated this reference in Article 49 and did not stipulate other laws, while the types of damages that are compensated for which there is loss due to actual income or loss are still compensated for this actual income.

2.2.5. Damage due to mental suffering

In comparison with Article 47 of the Law on State Compensation Liability 2009, Article 27 of the Law on State Compensation Liability 2017 of Vietnam fully amends the regulation on damage due to mental suffering as follows:

Firstly, supplementing several damages due to: (1) mental suffering during the educational administrative measures at communes, wards and towns (Clause 1 Article 27); (2) mental suffering in a case where a public employee is faced with dismissal unlawfully (Clause 6 Article 27); and (3) mental suffering in a case where the suffer is held in custody in an emergency (Point a Clause 3 Article 27) to comply with the regulations on supplementing these cases to the scope of the State's compensation liability in administrative management activities in Point a Clause 5 Article 17, which is “education at communes, wards, district-level towns”; Clause 14 Article 17, which is "Unlawfully issuing decisions on dismissal as disciplinary action to public employees at the position of less than or equal to Director General"; and in criminal proceedings in Clause 1 Article 18, which is "A person was detained for emergencies without justifiable basis as prescribed in the Criminal Procedure Code and he/she did not commit any violation of law”.

Secondly, increasing the level of compensation for mental damages in cases where people are detained according to administrative procedures, sent to reformatories, compulsory education establishments, and compulsory detoxification establishments (Clause 2 Article 27) and being unjustly prosecuted in criminal proceedings (Clause 3 Article 27); increasing the compensation level for mental damage caused by health damage (Clause 5 Article 27) from 30 months' base salary to 50 months' base salary (Clause 5 Article 27). The increase in compensation for the above damages is in accordance with the provisions of the Civil Code 2015 on compensation for non-contractual damages and socio-economic development conditions, as well as further ensuring the legitimate rights and interests of the damaged person.

Thirdly, supplementing regulations on how to determine "base salary day" as 01 month of base salary divided by 22 days on the basis of inheriting regulations in the documents guiding the implementation of the Law on State Compensation Liability 2009.

Moreover, Clause 4 Article 27 specifies that if the sufferer dies, Clauses 1, 2, 3 and 5 of this Article shall not apply.

2.2.6. Extraordinary expenditures to be compensated

Article 28 is a newly supplemented article on extraordinary expenditures to be compensated. Extraordinary expenditures to be compensated include: (ii) Expenditures on rental of rooms, travel, printing, sending of complaints or denunciation; hire of defenders or protectors of rights and legitimate interests of sufferer (Point a Clause 1 Article 28); (ii) Expenditures on relatives' travel to visit detainees, prisoners (relatives of detainees or prisoners shall be defined as prescribed in law on temporary detention or imprisonment duration and law on criminal judgment enforcement) (Point b Clause 1 Article 28).

This regulation is supplemented on the basis of legalizing regulations already in a number of documents guiding the implementation of the 2009 Law. In addition, the addition of this regulation is also to ensure compliance with practice, accordingly, over the past 6 years, in many cases, victims have requested compensation for food, accommodation, travel, and document printing costs during the process of complaining, denouncing, participating in proceedings etc. to obtain documents as a basis for claiming compensation. However, their losses are not compensated in some activities because they are not specified in some guiding documents - which means that there is no consensus among the documents guiding the implementation of the Law on State Compensation Liability 2009. Therefore, the Law on State Compensation Liability 2017 of Vietnam has supplemented regulations on other reasonable costs to be compensated as mentioned above.

In principle, damages are other costs that are compensated and are determined to be compensated to the extent of the damage, and there must be legal invoices and documents as a basis for determining the compensated damages. However, to create conditions for the compensation settlement agency to settle compensation quickly and promptly, Article 27 of the Law on State Compensation Liability 2017 also quantifies a number of damages as other costs when there are no invoices or documents proving actual damages such as: (i) If the claimant fails to present legitimate invoices or supporting documents for the said expenditures, the expenditure to be compensated shall be up to 6 month’s base salary at the time prescribed in Clause 2 Article 22 of this Law for 1 year from the date on which the complaint or denunciation is filed or the claimant involves himself/herself in legal proceeding until the date on which a document on compensation settlement is issued by the competent authority comes into force (Point a Clause 2 Article 28); (ii) If the claimant fails to present the postal charge receipt for the said expenditures, the expenditure to be compensated shall be up to 6 month’s base salary at the time prescribed in Clause 2 Article 22 of this Law for 1 year from the date on which the complaint or denunciation is filed or the claimant involves himself/herself in legal proceeding until the date on which a document on compensation settlement is issued by the competent authority comes into force.

Besides, the Law on State Compensation Liability 2017 also specifies that the period of time as the basis for determination of expenditures to be compensated shall begin from the date on which the damage occurs until the date on which a document on compensation settlement is issued by the competent authority comes into force.

2.2.7. Restoration of lawful rights and interests of sufferers

Article 28 is a newly supplemented article on restoration of lawful rights and interests of sufferers, which is a concretization of the provisions in Clause 7 Article 8 and Point dd Clause 1 Article 9 of the Law on State Compensation Liability 2009. The Law on State Compensation Liability 2009 does not clearly stipulate what "other legal rights and interests" include, which leads to inconsistent understanding and difficulty in applying in practice. On that basis, the Law on State Compensation Liability 2017 supplements this Article and clearly defines other rights and interests, including: (1) Resume position (if any), job and benefits as prescribed in law; (2) Restore right to learn; (3) Resume membership in political organizations, socio-political organizations, political-social-professional organizations, social organizations, and social-professional organizations; (4) Restore other lawful rights and interests.

Procedures for restoration of these lawful rights and interests shall be carried out as prescribed by law and regulations and charters of relevant organizations.

2.2.8. Return of assets

In comparison with Article 50 of the Law on State Compensation Liability 2009 and Article 11 of Decree No. 16/2010/NĐ-CP of Vietnam’s Government on return of assets, Article 30 of the Law on State Compensation Liability 2017 of Vietnam amends regulation on return of assets in the direction to apply the law on handling administrative violations, law on enforcement of civil judgments, law on proceedings and other relevant laws in cases that assets seized, held in custody, distrained or confiscated unlawfully will be returned immediately after the decisions on asset seizure, custody, distraint or confiscation are canceled.

2.2.9. Honor restoration

In comparison with Article 51 of the Law on State Compensation Liability 2009, Article 31 of the Law on State Compensation Liability 2017 of Vietnam amends the regulation on honor restoration as follows: one, use the term "phục hồi danh sự" instead of the term "khôi phục danh dự" to comply with the provisions of Articles 30 and 31 of the Constitution 2013 of Vietnam; two, supplement subjects to be restored honor in addition to the case of restoring honor to people who have suffered damage in criminal proceedings under the Law on State Compensation Liability 2009. Supplementing the case of restoring honor in administrative management activities for civil servants holding positions from General Director or equivalent or lower who are disciplined and forced to quit their jobs illegally, people subject to measures of sending to reformatories, compulsory education establishments, and compulsory detoxification establishments.

2.2.10. Non-compensation damage

Article 32 of the Law on State Compensation Liability 2017 of Vietnam fully amends cases of non-compensation damage, specifically including:

(1) Damages not compensated by the State apply generally to all activities within the scope of State compensation liability (Clause 1 Article 32): (i) Damage occurs entirely due to the fault of the suffer; (ii) Damage occurring objectively unpredictable and irreparable even though the law enforcers has applied all necessary measures and to the best of his/her ability; (iii) 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 less damage than the damage to be prevented, except for the case prescribed in Clause 6 of Article 23 of this Law.

(2) In criminal procedures, the state shall not compensate for damage caused in the following circumstances (Clause 2 Article 32): (i) 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; (ii) 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; (iii) Damage 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; (iv) 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 Clause 1 Article 32, 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 (Clause 3 Article 32).

(4) In addition to the damage prescribed in Clause 1 Article 32, 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 (Clause 4 Article 32).

In summary, the amendments and supplements to compensation for damages in the Law on State Compensation Liability 2017 of Vietnam have basically contributed to meeting the requirements of protecting human rights and civil rights in the provisions of the Constitution 2013 of Vietnam. In addition, the Law also assigned the Government to stipulate a number of provisions of the Law on the time period used as a basis for determining compensable damages for certain types of damages (Clause 3 Article 22), damage due to property infringement (Clause 7 Article 23), other expenses are compensated (Clause 5 Article 28). Thus, in the coming time, the Decree detailing a number of articles of the Government must continue to specifically guide these contents to ensure that the regulations on compensatory damages actually come to life.

MSc. Le Thi Thu Hang, State Compensation Department

Source: Ministry of Justice of Vietnam

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