Non-compensation damage in Vietnam according to the Law on State Compensation Liability

Non-compensation damage in Vietnam according to the Law on State Compensation Liability (Internet image)

Regarding this issue, LawNet would like to answer as follows

1. Non-compensation damage in Vietnam according to the Law on State Compensation Liability

Specifically, Article 32 of the Law on State Compensation Liability 2017 stipulates non-compensation damage:

- 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 Law on State Compensation Liability 2017.

- Apart from damage prescribed in Clause 1 of Article 32 of the Law on State Compensation Liability 2017, 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prosecuted in criminal cases instituted at the request of victims, but the cases were terminated as the victims have withdrawn their requests for institution of criminal cases;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.

- Apart from the damage prescribed in Clause 1 of Article 32 of the Law on State Compensation Liability 2017, 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.

- In addition to the damage prescribed in Clause 1 of Article 32 of the Law on State Compensation Liability 2017, 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.

2. Rules for state compensation in Vietnam

Pursuant to Article 4 of the Law on State Compensation Liability 2017, the rules for state compensation include:

- The state compensation shall be paid as prescribed in the Law on State Compensation Liability 2017.

- The compensation claim shall be settled promptly, transparently, equally, in good faith, truthfully, and legally; and be initiated on the basis of negotiation between the compensation body and the claimant as per the Law on State Compensation Liability 2017.

The compensation claim in criminal procedures shall be settled at the superior body of law enforcer causing damage as prescribed in Section 1 Chapter V of the Law on State Compensation Liability 2017.

- If a claimant filed a compensation claim to any of compensation bodies prescribed in Clause 7 Article 3 of the Law on State Compensation Liability 2017 and such compensation body accepted the claim, such claimant is not allowed to file any compensation claim to other competent authorities, except for the cases prescribed in Point b Clause 1 and Clause 2 Article 52 of the Law on State Compensation Liability 2017.

- The state shall settle a compensation claim upon receipt of the document serving as ground for claim or combine the compensation settlement in the course of criminal procedures or administrative procedures at the court in case of compensation claims in administrative management, civil procedures, administrative procedures, criminal judgment enforcement, and civil judgment enforcement as prescribed in the Law on State Compensation Liability 2017.

- In cases where the damage is partly the sufferer’s fault, the state shall pay an amount which was deducted from the damages corresponding to the sufferer's fault.

Ho Quoc Tuan

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