Chương III Luật trách nhiệm bồi thường của Nhà nước 2009: Trách nhiệm bồi thường của nhà nước trong hoạt động tố tụng

Chapter III

STATE COMPENSATION LIABILITY IN LEGAL PROCEEDINGS

Section I. SCOPE OF COMPENSATION LIABILITY

Article 26. Scope of compensation liability in criminal proceedings

The State shall compensate for damage in the following cases:

1. Agencies competent in criminal proceedings issue decisions annulling the decisions on custody as the persons held in custody do not commit any illegal act;

2. Agencies competent in criminal proceedings issue judgments or decisions affirming that detainees or persons who have completely served or are serving their termed imprisonment, life sentence, persons who are sentenced to death or persons who have been executed under death sentences did not commit any criminal acts;

3. Agencies competent in criminal proceedings issue judgments or decisions affirming that persons against whom criminal cases were instituted, who were prosecuted and brought to trial or against whom judgments were enforced without being held in custody or detained, or who served their prison terms did not commit any criminal acts:

4. Agencies competent in criminal proceedings issue judgments or decisions affirming that persons against whom criminal cases were instituted, who were prosecuted and brought to trial for several offenses in the same case or who have completely served their prison terms did not commit any or some of these offenses and the penalty term imposed for remaining offenses is shorter than the duration they were temporarily detained or served their imprisonment sentences, and these persons are entitled to compensation for the temporary detention or imprisonment duration in excess of the aggregate term imposed for the offenses which they have committed:

5. Agencies competent in criminal proceedings issue judgments or decisions affirming that persons against whom criminal cases were instituted or who were prosecuted and brought to trial for various offenses in the same case and sentenced to death but the death penalty has not yet been executed, did not commit the offense subject to the death penalty while the aggregate term for remaining offences is shorter than the duration of their temporary detention: and these persons are entitled to compensation for their temporary detention duration in excess of the aggregate term imposed for the offenses they have committed:

6. Agencies competent in criminal proceedings issue judgments or decisions affirming that persons who were tried for various offenses under different judgments and subject to different penalties already aggregated by the court did commit one or some of these offenses while the term for remaining offenses is shorter than their temporary detention or imprisonment duration; and these persons are entitled to compensation for their temporary detention or imprisonment duration in excess of the aggregate term imposed for the offenses they have committed:

7. Organizations or individuals suffering from property damage due to property seizure, custody, distraint, confiscation or handling related to cases defined in Clauses 1. 2 and 3 of this Article are entitled to compensation.

Article 27. Cases ineligible for compensation in criminal proceedings

1. Persons who are exempt from penal liability under law.

2. Deliberately making false declarations or providing other untruthful documents or exhibits in order to admit guilt for other persons or to cover up crimes.

3. Persons against whom criminal cases were instituted, who were prosecuted and brought to trial for various offenses in the same case or for whom the court decided to aggregate the penalties under various judgments, who were held in custody, detained, completely served their imprisonment sentences, or who were sentenced to death but the death penalty has not yet been executed, but later agencies competent in criminal proceedings issue judgments or decisions affirming that those persons did not commit one or some of these offenses but they do not fall into cases defined in Clauses 4, 5 and 6, Article 26 of this Law.

4. Persons against whom criminal cases were instituted or who were 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, unless their illegal acts do not constitute a criminal offense.

5. Persons against whom criminal cases were instituted or who were prosecuted and tried strictly in accordance with legal documents effective at the time of prosecution and trial but at the time when the judgments or decisions take effect new legal documents are promulgated and took effect after the date of prosecution or trial they no longer bear penal liability.

Article 28. Scope of compensation liability in civil and administrative proceedings

The State shall compensate for damage caused by illegal acts of civil procedure- or administrative procedure-conducting persons in the following cases:

1. They applied provisional urgent measures by themselves.

2. They applied provisional urgent measures other than those requested by individuals, agencies or organizations:

3. They applied provisional urgent measures beyond individuals', agencies' or organizations' requests.

4. They issued judgments or decisions which were, to their clear knowledge, were illegal or deliberately distorted the case files.

Section 2. COMPENSATION-LIABLE AGENCIES

Article 29. Compensation-liable agencies in criminal proceedings

1. Agencies liable for compensation in criminal proceedings are those defined in Articles 30. 31 and 32 of this Law. If these agencies have been separated, merged, consolidated, dissolved or mandated to perform the official duty, compensation-liable agencies shall be determined under Points a and c. Clause 2, Article 14 of this Law.

2. Agencies liable for compensation in criminal proceedings shall compensate for damage caused in previous procedural stages.

Article 30. Compensation liabilities of investigative agencies and agencies tasked to conduct a number of investigative activities in criminal proceedings

Investigative agencies and agencies tasked to conduct a number of investigative activities shall pay compensation in the following cases:

1. They issued custody decisions but such decisions were then annulled by decisions of competent procuracies as the persons held in custody did not commit any illegal act:

2. They issued decisions to institute criminal cases against the accused but such decisions were not ratified by competent procuracies as the accused did not commit any criminal act.

Article 31. Compensation liability of People's Procuracies in criminal proceedings

Procuracies shall compensate for damage in the following cases:

1. They ratified the decisions to extend the custody duration made by competent investigate agencies but the persons held in custody did not commit any illegal act;

2. They ratified detention orders of competent investigative agencies or issued detention or detention extension orders and later competent agencies in criminal proceedings issued decisions affirming that such persons did not commit any criminal act;

3. First-instance courts returned files for additional investigation and later competent agencies issued decisions terminating the investigation as the persons in question did not commit any criminal act;

4. They issued prosecution decisions but first-instance courts declared the defendants not guilty as they did not commit any criminal act and the first-instance judgments have taken legal effect;

5. Appellate courts uphold first-instance courts* judgments or rulings declaring the defendants not guilty as they did not commit any criminal act;

6. Appellate courts uphold first-instance courts' judgments or rulings declaring the defendants not guilty as they did not commit any criminal act and later courts conducting trial according to cassation or reopening procedures still uphold the appellate courts' judgments or rulings declaring the defendants not guilty as they did not commit any criminal act.

Article 32. Compensation liability of People's Courts in criminal proceedings

1. The first-instance court shall compensate for damage in the following cases:

a/ It declares the defendant guilty but the appellate court quashes the first-instance judgment, declared the defendant not guilty and terminated the case as that person did not commit any criminal act or quash the first-instance judgment for re-investigation and later the defendant's investigation and case are terminated as he/she did not commit any criminal act, or quashes the first-instance for re-trial and later the defendant is declared not guilty as he/she did not commit any criminal act;

b/ It declares the defendant guilty and the first-instance judgment has taken legal effect but later the court conducting trial according to cassation or reopening procedures quashes that judgment and terminates the case as that person did not commit any criminal act;

c/ It declares the defendant guilty and the judgment has taken effect but later the court conducting trial according to cassation or reopening procedures quashes that judgment for re-investigation and the defendant's investigation and case are terminated as he/she did not commit any criminal act;

d/ It declares the defendant guilty and the judgment has taken effect but later the court conducting trial according to cassation or reopening procedures quashes that judgment for re-trial and the defendant is declared not guilty as he/she did not commit any criminal act.

2. The appellate court shall compensate for damage in the following cases:

a/ It declares the defendant guilty but the court conducting trial according to cassation or reopening procedures quashes the appellate judgment and terminates the case as that person did not commit any criminal act:

b/ It declares the defendant guilty but the court conducting trial according to cassation or reopening procedures quashes the appellate judgment for re-investigation and later the defendant's investigation and case is terminated as he/she did not commit any criminal act;

c/ It declares the defendant guilty but the court conducting trial according to cassation or reopening procedures quashes the appellate judgment for re-trial and later the defendant is declared not guilty as he/she did not commit any criminal act.

3. People's Courts of provinces and centrally run cities and military courts of military zones or equivalent level shall compensate for damage when the Judges' Committees of the People's Courts of provinces or centrally run cities or the military courts of military zones or equivalent level conducting trial according to cassation or reopening procedures uphold subordinate courts' judgments declaring defendants guilty, in the following cases:

a/ The Criminal Tribunal of the Supreme People's Court conducting trial according to cassation or reopening procedures quashes the cassation or reopening rulings of the Judges' Committees of the People's Courts of provinces or centrally run cities or the military courts of military zones or equivalent level and suspends the cases as the defendants did not commit any criminal act;

b/ The Criminal Tribunal of the Supreme People's Court conducting trial according to cassation or reopening procedures quashes the cassation or reopening rulings of the Judges' Committees of the People's Courts of provinces or centrally run cities or the military courts of military zones or equivalent level for re­investigation and later the defendants' investigation and cases are terminated as they did not commit any criminal act;

c/ The Criminal Tribunal of the Supreme People's Court conducting trial according to cassation or reopening procedures quashes the cassation or reopening rulings of the Judges' Committees of the People's Courts of provinces or centrally run cities or the military courts of military zones or equivalent level for re-trial and later the defendants are declared not guilty as they did not commit any criminal act.

4. The Supreme People's Court shall compensate for damage when the appellate court of the Supreme People's Court, the Criminal Tribunal of the Supreme People's Court or the Central Military Court (below collectively referred to as competent court) conducting trial according to cassation or reopening procedures upholds the subordinate courts' judgments declaring the defendants guilty in the following cases:

a/ The Judges' Council of the Supreme People's Court quashes cassation or reopening rulings of competent courts under the Supreme People's Court and terminates the cases as the defendants did not commit any criminal act;

b/ The Judges' Council of the Supreme People's Court quashes cassation or reopening rulings of competent courts under the Supreme People's Court for re-investigation and later the defendants' investigations and cases are terminated as they did not commit any criminal act;

c/ The Judges' Council of the Supreme People's Court quashes cassation or reopening rulings of competent courts under the Supreme People's Court for re-trial and later the defendants are declared not guilty as they did not commit any criminal act.

Article 33. Compensation liability of People's Courts in civil and administrative proceedings

1. Courts competent to issue rulings on application of provisional urgent measures defined in Clauses 1, 2 and 3, Article 28 of this Law shall compensate.

2. First-instance courts shall compensate if their legally effective first-instance judgments or rulings defined in Clause 4, Article 28 of this Law are quashed according to cassation or reopening procedures.

3. Appellate courts shall compensate for damage if their legally effective appellate judgments or rulings defined in Clause 4, Article 28 of this Law are quashed according to cassation or reopening procedures.

4. Courts conducting trial according to cassation or reopening procedures shall compensate if their legally effective cassation or reopening rulings defined in Clause 4, Article 28 of this Law are quashed according to cassation or reopening procedures.

5. If courts defined in Clauses 1, 2, 3 and 4 of this Article are separated, merged, consolidated or dissolved, compensation-liable agencies shall be identified under Point a, Clause 2, Article 14 of this Law.

Section 3. COMPENSATION SETTLEMENT PROCEDURES

Article 34. Dossiers of claims for compensation at criminal procedure- conducting agencies

1. Upon receipt of judgments or decisions of criminal procedure-conducting agencies affirming that they fall into compensation-eligible cases defined in Article 26 of this Law sufferers shall file compensation claims with compensation-liable agencies according to the following provisions:

a/ Persons suffering from damage due to custody decisions or decisions to institute criminal cases against the accused issued by investigative agencies or agencies tasked to conduct a number of investigative activities defined in Article 30 of this Law shall file compensation claims with the investigative agencies or the agencies tasked to conduct a number of investigative activities which have issued such decisions:

b/ Persons suffering from damage due to procuracies' decisions defined in Article 31 of this Law shall file compensation claims with the procuracies which have issued such decisions:

c/ Persons suffering from damage due to judgments or rulings of competent courts defined in Article 32 of this Law shall file compensation claims with the courts which have made such judgments or rulings.

2. A claim for compensation in criminal proceedings defined in Clause 1 of this Article contains the following principal details:

a/ Full name and address of the compensation claimant:

b/ Reasons for the compensation claim;

c/ The damage and claimed compensation amount.

3. Enclosed with a compensation claim shall be the judgment or decision affirming that the claimant falls into one of compensation-eligible cases defined in Article 26 of this Law and documents and evidence related to the compensation claim.

Article 35. Dossiers of compensation claims at civil or administrative procedure-conducting agencies

1. Upon receipt of documents affirming illegal acts of official-duty performers who have committed acts defined in Article 28 of this Law, sufferers shall file compensation claims with compensation-liable agencies according to the following provisions:

a/ Persons suffering from damage due to courts' application of provisional urgent measures defined in Clauses 1, 2 and 3. Article 28 of this Law shall file compensation claims with the courts which have issued rulings to apply such provisional urgent measures;

b/ Persons suffering from damage due to court judgments or rulings defined in Clause 4. Article 28 of this Law shall file compensation claims with the courts which have made such judgments or rulings.

2. A claim for compensation in civil or administrative proceedings defined in Clause 1 of this Article contains the following principal details:

a/ Full name and address of the compensation claimant;

b/ Reasons for the compensation claim;

c/ The damage and claimed compensation amount.

3. Enclosed with a compensation claim shall be documents affirming the illegal act of the official-duty performer and documents and evidence related to the compensation claim.

Article 36. Handling, verification, negotiation, issuance and effect of decisions on settlement of compensation in legal proceedings

The handling, verification, negotiation and issuance and effect of decisions on settlement of compensation in criminal, civil or administrative proceedings comply with Articles 17, 18, 19, 20 and 21 of this Law.

Article 37. Settlement of claims for compensation in legal proceedings at courts

The initiation of lawsuits requesting courts to settle compensation and the competence and procedures for settlement of compensation at courts in legal proceedings comply with Articles 22 and 23 of this Law.