Chương I Luật Trách nhiệm bồi thường của Nhà nước 2017: Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Law provides for the state's liability to pay compensation to individuals and organizations suffering from damage caused by law enforcers in administrative management, legal proceedings and judgment enforcement activities; damage to be compensated; the rights and obligations of individuals and organizations suffering from damage; compensation bodies; compensation procedures; restoration of honor; compensation funds; the reimbursement liability; responsibilities of regulatory bodies in state compensation.

Article 2. Entities eligible for compensation

Individuals and organizations suffering from material damage and/or mental sufferings (hereinafter referred to as sufferers) caused by law enforcers in cases provided by this Law are eligible for compensation by the state.

Article 3. Interpretation of terms

For the purposes of this Law, these terms below shall be construed as follows:

1. Sufferer refers to individuals and organizations suffering from material damage and/or mental sufferings caused by law enforcers in cases provided by this Law.

2. Law enforcer refers to a person who is elected, approved, recruited or appointed to a position as prescribed in law on officials and public employees and relevant law provisions in a regulatory body to perform the tasks of administrative management, legal proceedings or judgment enforcement, or a person who is assigned by a competent state agency to perform tasks related to administrative management. legal proceedings or judgment enforcement.

3. Claimant refers to any of the following entities who have filed a claim for compensation: sufferers, legal representatives, authorized representatives of sufferers, the heirs of sufferers if the sufferer being natural person died or the heir of sufferer being organization ceased to exist.

4. Illegal act of law enforcer refers to an act of non­performance or unlawful performance of a task or power.

5. Document serving as ground for claim refers to a legally effective document issued by the regulatory agency or competent person in accordance with regulations of law, which clarify illegal act of a law enforcer or a judgment/decision which certifies that the sufferer is eligible for compensation paid by the state.

6. Compensation person refers to a person appointed by the compensation body to settle the compensation claim.

7. Compensation body refers to the superior body directly managing the law enforcer who committed an illegal act causing damage (hereinafter referred to as law enforcer causing damage) or the court in charge of lawsuit settlement

8. Reimbursement refers to liabilities of law enforcer who committed illegal act causing damage for reimbursing an amount to state budget as prescribed in this Law.

Article 4. Rules for state compensation

1. The state compensation shall be paid as prescribed in this Law.

2. 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 this Law.

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 this Law.

3. If a claimant filed a compensation claim to any of compensation bodies prescribed in Clause 7 Article 3 of this Law 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 this Law.

4. 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 this Law.

5. 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.

Article 5. The right to claim compensation

The following entities are entitled to claim compensation from the state:

1. Sufferers;

2. Heirs of sufferers if the sufferer being natural person died or the heir of sufferer being organization ceased to exist;

3. Legal representatives of sufferers if required as prescribed in the Civil Code;

4. Natural persons, juridical persons that are authorized by entities prescribed in Clauses 1, 2, and 3 of this Article to claim compensation from the state.

Article 6. Period of prescription for lodging compensation claims

1. The period of prescription for lodging compensation claims defined is 3 years from the date on which the entity entitled to claim compensation prescribed in Clauses 1, 2, and 3 Article 5 of this Law receives the document serving as ground for claim, except for the case specified in Clause 2 Article 52 of this Law and restoration of honor.

2. The period of prescription for lodging compensation claims in administrative case settlement is determined according to period of prescription for taking administrative proceedings.

3. Periods not included in period of prescription for compensation claims:

a) Periods covering force majeure events or objective hindrance prescribed in the Civil Code that prevent entities eligible for compensation claim prescribed in Clauses 1, 2, and 3 Article 5 of this Law from exercising such right to claim compensation;

b) Periods over which the sufferer being minor, legally incapacitated person, or person with limited legal capacity or person with limited cognition or behavior control has not had any representatives as per the law or his/her representative died or could not keep acting as the representative until a new representative is appointed.

4. Claimants shall bear burden of proof in terms of the periods not included in the periods of prescription prescribed in Clause 3 hereof.

Article 7. Grounds for determination of state compensation liability

1. The state shall have compensation liability when all of the following grounds are given:

a) The availability of any of the proof to define the law enforcer's illegal act and a compensation claim prescribed in Clause 2 hereof;

b) The sufferer's actual damage within the state compensation liability as prescribed in this Law;

c) The existence of the causal link between actual damage and the damaging act.

2. Proof to define the law enforcer’s illegal act and equivalent compensation claim:

a) Document serving as ground for claim prescribed herein and the claim for compensation filed to the enforcer’s superior body or the competent court in charge of civil lawsuit settlement;

b) The court in charge of administrative case settlement confirmed the existence of illegal act of the defendant being law enforcer causing damage within the state compensation liability and a compensation claim was lodged before or at the meeting to check, access, and publicize evidence and settlement dialogue;

c) The court in charge of criminal case settlement confirmed the existence of illegal act of the defendant being law enforcer causing damage within the state compensation liability in administrative management, civil procedures, administrative procedures, criminal judgment enforcement, civil judgment enforcement and a compensation claim was lodged during the settlement of criminal case.

Article 8. Documents forming the basis for compensation claim in administrative management

Documents forming the basis for compensation claim in administrative management prescribed in Article 17 hereof include:

1. Judgments/decisions made by the competent courts on confirmation of illegal acts of law enforcers;

2. Decisions partly or wholly accepting complaints filed by the claimants as prescribed by law on complaints;

3. Decisions on cancellation, revocation, amendments to administrative decisions which were promulgated unlawfully;

4. Decisions on actions against violations committed by law enforcers which were denounced on the basis of denunciation as prescribed by law on complaints;

5. Decisions on actions against violations committed by law enforcers which were denounced on the basis of inspection findings as prescribed by law on inspection;

6. Decisions on disciplinary actions against law enforcers that committed illegal acts;

7. Other documents as per the law that meet the conditions prescribed in Clause 5 Article 3 of this Law.

Article 9. Document serving as ground for claim in criminal procedures

Documents forming the basis for compensation claim in criminal procedures prescribed in Article 18 hereof include:

1. Judgments made by competent courts to confirm that sufferers are eligible for compensation;

2. Decisions made by courts, procuracies, investigation bodies, agencies assigned to carry out certain investigation activities that confirm that sufferers are eligible for compensation;

3. Other documents as per the law on criminal procedures that meet the conditions prescribed in Clause 5 Article 3 of this Law.

Article 10. Document serving as ground for claim in civil procedures, administrative procedures

Documents forming the basis for compensation claim in civil procedures, administrative procedures prescribed in Article 19 hereof include:

1. Criminal judgments/decisions made by the competent courts confirming that presiding officers in civil procedures, administrative procedures since they issued illegal judgments/decisions or falsified case files/matter files;

2. Final and conclusive decisions on handling of complaints made by competent chief justice or trial panel as prescribed by law on civil procedures, administrative procedures confirming the illegal acts of law enforcers in enforcement of temporary emergency measures;

3. Decisions on suspension of investigation made by investigation bodies, decisions on suspension of cases made by procuracies, courts as prescribed by law on criminal procedures applying to presiding officers in civil procedures, administrative procedures since they issued illegal judgments/decisions or falsified case files/matter files but they were exempt from criminal liability as prescribed in Criminal Code;

4. Decisions on handling of complaints made by competent chief justice confirming that presiding officers in civil procedures, administrative procedures issued illegal judgments/decisions or falsified case files/matter files; and decisions on handling of complaints concluding that there are substantial grounds to take disciplinary actions or criminal liability against these presiding officers but they died earlier;

5. Decisions on disciplinary actions against presiding officers in civil procedures, administrative procedures that issued illegal judgments/decisions or falsified case files/matter files;

6. Other documents as per the law that meet the conditions prescribed in Clause 5 Article 3 of this Law.

Article 11. Document serving as ground for claim in criminal judgment enforcement

Documents forming the basis for compensation claim in criminal judgment enforcement prescribed in Article 20 hereof include:

1. Judgments/decisions made by the competent court on confirmation of illegal acts of law enforcers;

2. Decisions partly or wholly accepting complaints filed by the claimants as prescribed by law on criminal judgment enforcement;

3. Decisions on actions against violations committed by law enforcers which were denounced on the basis of denunciation as prescribed by law on complaints;

4. Decisions on disciplinary actions against law enforcers that committed illegal acts;

5. Other documents as per the law that meet the conditions prescribed in Clause 5 Article 3 of this Law.

Article 12. Document serving as ground for claim in civil judgment enforcement

Documents forming the basis for compensation claim in civil judgment enforcement prescribed in Article 21 hereof include:

1. Judgments/decisions made by the competent court on confirmation of illegal acts of law enforcers;

2. Decisions partly or wholly accepting complaints filed by the claimants as prescribed by law on civil judgment enforcement;

3. Decisions on cancellation, revocation, amendments to decisions on judgment enforcement which were promulgated unlawfully;

4. Decisions on actions against violations committed by law enforcers which were denounced on the basis of denunciation as prescribed by law on complaints;

5. Documents issued by heads of civil enforcement agencies accepting appeal by the procuracy as prescribed in law on civil judgment enforcement;

6. Decisions on disciplinary actions against law enforcers that committed illegal acts;

7. Other documents as per the law that meet the conditions prescribed in Clause 5 Article 3 of this Law.

Article 13. Rights and obligations of claimants

1. A claimant being sufferer has the rights to:

a) request any of bodies prescribed in Clause 7 Article 3 hereof to settle his/her compensation claim and is notified of processing results;

b) file a complaint/denunciation/lawsuit against illegal decision/act of persons competent in settlement of compensation claim as prescribed in law on complaints, denunciation and law on administrative procedures; complaints, appeal against court's judgments and decisions as prescribed in law on procedures;

c) request competent agencies or organizations to restore his/her legitimate rights and interests as per the law;

d) ask other persons to protect his/her legitimate rights and interests;

dd) receive guidelines for compensation claims from compensation-managing authority and enforcer’s superior body;

e) authorize another natural or juridical person to exercise right to compensation claim as prescribed in the Civil Code;

g) and other rights as prescribed by law.

2. A claimant being sufferer has the obligations to:

a) provide materials and evidence relating to compensation claim promptly, accurately, and truthfully and take legal responsibility for such provision;

b) fully participate in the course of compensation claim settlement at the request of compensation body.

c) prove the damage actually occurred that is eligible for compensation as prescribed in this Law and the existence of the causal link between actual damage and damaging act;

d) and other obligations as prescribed by law.

3. A claimant being the legal representative or the heir of sufferer which is natural person or organization shall have rights and obligations prescribed in Clauses 1 and 2 of this Article.

4. A claimant being the authorized representative shall have rights and obligations prescribed in Points a, b, c, d, and dd Clause 1 and Clause 2 hereof within the scope of authorization.

Article 14. Rights and obligations of damage-causing law enforcers

1. A law enforcer causing damage shall have the rights to:

a) Receive the document on settlement of compensation claim directly related to his/her rights and obligations as prescribed in this Law;

b) File a denunciation against illegal decision/act of persons competent in settlement of compensation claim, and determination of reimbursement liability as prescribed in law on complaints; file a complaint, lawsuit against the decision on reimbursement, appeal against court's judgments and decisions as prescribed in law on complaints, law on administrative procedures;

c) and other rights as prescribed by law.

2. A law enforcer causing damage shall have the obligations to:

a) provide materials and evidence relating to settlement of compensation claim at the request of compensation body promptly, accurately, and truthfully and take legal responsibility for such provision;

b) fully participate in settlement of compensation claim at the request of compensation body and the court of determining reimbursement liability at the request of enforcer’s superior body;

c) and reimburse to the state budget money amounts already paid as compensation to sufferers under decisions of enforcer’s superior body;

d) and other obligations as prescribed by law.

Article 15. Responsibilities of compensation bodies

1. Receive and accept compensation claims.

2. Restore honor or request enforcers’ superior bodies to restore honor of the sufferers as prescribed in this Law.

3. Provide claimants with explanation for their rights and obligations in the course of settlement of compensation claims.

4. Verify damage; carry out negotiation, settlement dialogue, amicable settlement in the course of settlement of compensation claims as prescribed in this Law and other relevant law provisions.

5. Take responsibility for the adequacy and validity of compensation claims, accuracy of documents and decisions on settlement of compensation claims.

6. Issue judgments and decisions on settlement of compensation claims, enforce judgment/decision itself or request enforcer’s superior body to enforce the judgment/decision.

7. Send judgments and decisions on settlement of compensation claims to compensation-managing authority and other entities as prescribed in this Law and other relevant law provisions.

8. Restore or propose competent agencies or organizations to restore other legitimate rights and interests of sufferers.

9. Provide claimants with guidelines for compensation claim procedures.

10. Settle compensation-related complaints and denunciations under the law on complaints and denunciations.

11. Participate in legal proceedings at courts if a claimant filed a lawsuit in terms of settlement of compensation claim, except for the case prescribed in Clause 1 Article 52 or Article 55 of this Law.

12. Determine enforcer’s reimbursement liability or request enforcer’s superior body to determine enforcer’s reimbursement liability and collect given reimbursement as prescribed in this Law.

13. Consider whether to take disciplinary actions within their competence or request competent authorities to consider whether to take disciplinary actions against the law enforcer causing damage.

14. Send reports on settlement of compensation claims, determination of reimbursement liability and disciplinary actions against the law enforcer causing damage to competent authorities, compensation-managing authority.

15. If the court in charge of a criminal or administrative case settles a compensation claim, it shall determine if the law enforcer causing damage committed any of acts prescribed in Point b and Point c Clause 2 Article 7 of this law in advance before it fulfills other responsibilities prescribed in Clauses 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13 and 14 of this Article.

Article 16. Prohibited acts in settlement of compensation claims

1. Forging documents and papers or providing truthful papers and evidence in compensation claims and in the course of settlement of compensation claims.

2. Acting in connivance among claimants, persons responsible for compensation settlement and concerned people for self-seeking purposes in compensation.

3. Abusing positions and powers to illegally intervene in the course of compensation settlement, determination of reimbursement liability and consideration of disciplinary actions taken against law enforcers causing damage.

4. Failing to settle compensation, failing to make decision on settlement of compensation claims or settling compensation in contravention of law.

5. Failing to determine reimbursement liability or failing to consider taking actions against law enforcers causing damage.

6. Harass, obstruct settlement of compensation claims.

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