Chương IV Luật Trách nhiệm bồi thường của Nhà nước 2017: Cơ quan giải quyết bồi thường

Chapter IV

COMPENSATION BODIES

Article 33. Compensation bodies in administrative management

1. Central compensation bodies include:

a) Ministries, ministerial-level agencies, Governmental agencies shall act as compensation bodies in cases where the law enforcers causing damage work under their direct management, except for the case prescribed in Point b of this Clause;

b) General Departments, Departments and other units that have the legal person status and separate accounts of Ministries, ministerial-level agencies or Governmental agencies shall act as compensation bodies in cases where the law enforcers causing damage work under their direct management.

2. Compensation bodies of provinces and central-affiliated cities (hereinafter referred to as provinces) include:

a) People’s Committees of provinces shall act as compensation bodies in cases where the law enforcers causing damage work under their direct management, except for the case prescribed in Point b of this Clause;

b) Specialized agencies or entities affiliated to the People's Committee of provinces that have the legal person status and separate accounts shall act as compensation bodies in cases where the law enforcers causing damage work under their direct management.

3. People’s Committees of districts shall act as compensation bodies in cases where the law enforcers causing damage work under their direct management.

4. People’s Committees of communes shall act as compensation bodies in cases where the law enforcers causing damage work under their direct management.

5. Authorities competent to provide information as prescribed in the Law on information access.

6. Authorities competent to apply necessary measures to protect denouncers as prescribed in the Law on Denunciation.

7. Agencies issuing dismissal decision as disciplinary actions to public employees.

8. Courts that have jurisdiction in lawsuit settlement as prescribed in law on criminal procedures, civil procedures, administrative procedures; courts that have jurisdiction in applying administrative measures as prescribed in the Law on penalties for administrative violations.

Article 34. Investigative agencies and agencies tasked to conduct certain investigative activities for compensation in criminal proceedings

An investigative agency or agency tasked to conduct certain investigative activities shall act as a compensation body in the following cases:

1. It issued a custody order for emergencies without justifiable grounds as prescribed in the Criminal Procedure Code and the person held in custody did not commit any illegal act; it issued an arrest or custody order but then the competent authority issued decision on release, cancellation of the custody orders, non-endorsement of the arrest order or decision on extension of custody order as the person held in custody or arrested did not commit any criminal act;

2. It issued a decision to prosecute the accused but then the procuracy does not approve the decision to prosecute the accused as the commission of an offence did not occur or the act did not constitute the offence;

3. The procuracy issued a decision on return of case files for additional investigation and then investigation body made additional investigation findings or new investigation findings for prosecution but the procuracy issued a decision on suspension of case as an offence did not occur or the act did not constitute the offence.

Article 35. Procuracies settling compensation in criminal proceedings

A procuracy shall act as a compensation body in any of the following cases:

1. It ratified an arrest order or decision to extend the custody duration made by competent investigate agency or agency tasked to conduct certain investigative activities but the arrested person or person held in custody did not commit any illegal act;

2. It ratified a decision to prosecute the accused or a detention order made by the investigation agency or agency tasked to conduct certain investigative activities or issued a decision to prosecute the accused, a detention order, or a decision to extend the detention duration but then the competent authority confirmed that the offence did not occur, the act did not constitute the offence, or the investigation period expired without justifiable grounds to prove that the accused committed any illegal act, except for the case prescribed in Clause 3 Article 34 of this Law; or it returned the case files for additional investigation, but the investigation body, according to investigation findings, issues a decision on suspension of investigation as the commission of an offence did not occur, the act did not constitute the offence, or the investigation period expired without justifiable grounds to prove that the accused committed any illegal act;

3. It issued a decision to prosecute the accused but the first-instance court declared that the defendant was not guilty as he/she did not commit any criminal act or the act did not constitute the offence and the first-instance judgment has taken legal effect;

4. The first-instance court returned case files for additional investigation and later the competent agency issued a decision on suspension of the investigation or case as the commission of an offence did not occur, the act did not constitute the offence or the investigation period expired without justifiable grounds to prove that the accused committed any illegal act;

5. The first-instance court returned case files for additional investigation and later declared that the defendant is not guilty as he/she did not commit any criminal act or the act did not constitute the offence and the first-instance judgment has taken legal effect;

6. The appellate court upheld a first-instance court judgment/ruling declaring that the defendant was not guilty as the commission of an offence did not occur or the act did not constitute the offence

7. The appellate court upheld a first-instance court's judgment/ruling declaring that the defendant is not guilty as the commission of an offence did not occur or the act did not constitute the offence and later the court conducting trial according to cassation or reopening procedures still uphold the appellate court's judgment/ruling declaring that the defendant is not guilty as the commission of an offence did not occur or the act did not constitute the offence.

Article 36. Courts settling compensation in criminal proceedings

1. A first-instance court shall act as a compensation body in any of the following cases:

a) It declared that the defendant was guilty but then the appellate court quashes the first-instance judgment, declaring that the defendant is not guilty and terminate the case as the commission of an offence did not occur or the act did not constitute the offence;

b) It declared that the defendant was guilty but later the appellate court quashes the first-instance judgment for re-investigation, and then the defendant's investigation and case are terminated as the commission of an offence did not occur or the act did not constitute the offence or the investigation period expired without justifiable grounds to prove that the accused committed any illegal act;

c) It declared that the defendant was guilty but then the appellate court quashed the first-instance judgment for retrial, and then declares that the defendant is not guilty as the commission of an offence did not occur or the act did not constitute the offence;

d) It declared that the defendant was 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 the commission of an offence did not occur or the act did not constitute the offence;

dd) It declared that the defendant was guilty and the first-instance judgment has taken legal effect later the court conducting trial according to cassation or reopening procedures quashes that judgment for re-investigation as the commission of an offence did not occur, or the act did not constitute the offence, or the investigation period expired without justifiable grounds to prove that the accused committed any illegal act;

e) It declared that the defendant was guilty the first-instance judgment has taken legal effect but later the court conducting trial according to cassation or reopening procedures quashes that judgment for re-trial and then the defendant is declared not guilty as the commission of an offence did not occur or the act did not constitute the offence.

2. An appellate court shall act as a compensation body in any of the following cases:

a) It declared that the defendant was guilty but later the court conducting trial according to cassation or reopening procedures quashes the appellate judgment and terminates the case as the commission of an offence did not occur or the act did not constitute the offence;

b) It declared that the defendant was guilty, but later the court conducting trial according to cassation or reopening procedures quashes the appellate judgment for re-investigation and then the defendant's investigation and case is terminated as the commission of an offence did not occur, or the act did not constitute the offence, or the investigation period expired without justifiable grounds to prove that the accused committed any illegal act;

c) It declared that the defendant was guilty, but later the court conducting trial according to cassation or reopening procedures quashes the appellate judgment for re-trial and then the defendant is declared not guilty as the commission of an offence did not occur or the act did not constitute the offence.

3. A superior people’s court or a central military court that have jurisdiction to conduct trial according to cassation or reopening procedures shall act as a compensation body in any of the following cases:

a) The Council of Judges of the Supreme People’s Court quashes the cassation or reopening ruling of the Superior People’s Court or central military court which declared that the defendant was guilty and terminate the case as the commission of an offence did not occur or the act did not constitute the offence;

b) The Council of Judges of the Supreme People’s Court quashes the cassation or reopening ruling of the Superior People’s Court or central military court which declared that the defendant was guilty for re-investigation and then the defendant's investigation and case is terminated as the commission of an offence did not occur, or the act did not constitute the offence, or the investigation period expired without justifiable grounds to prove that the accused committed any illegal act;

c) The Council of Judges of the Supreme People’s Court quashes the cassation or reopening ruling of the Superior People’s Court or central military court which declared that the defendant was guilty for re-trial and then the defendant is declared not guilty as the commission of an offence did not occur or the act did not constitute the offence.

4. The Supreme People’s Court shall act as a compensation body in any of the following cases:

a) The Council of Judges of the Supreme People's Court quashes its cassation or reopening rulings which declared that the defendant was guilty, or quashes a legally effective judgment/decision of the inferior court, and declares that the defendant is guilty as the commission of an offence did not occur or the act did not constitute the offence;

b) The Council of Judges of the Supreme People’s Court quashes its cassation or reopening ruling which declared that the defendant was guilty, or quashes a legally effective judgment/decision of the inferior court for re-investigation and then the defendant's investigation and case is terminated as the commission of an offence did not occur, or the act did not constitute the offence, or the investigation period expired without justifiable grounds to prove that the accused committed any illegal act;

c) The Council of Judges of the Supreme People's Court quashes its cassation or reopening rulings which declared that the defendant was guilty , or and quashes a legally effective judgment/decision of the inferior court for re-trial, and then the defendant declared not guilty as the commission of an offence did not occur or the act did not constitute the offence.

Article 37. Courts settling compensation in civil procedures, administrative procedures

1. A court competent to issue rulings on application of temporary emergency measures defined in Clauses 1, 2 and 3, Article 28 of this Law shall act as a compensation body.

2. A first-instance court shall act as a compensation body if its legally effective first-instance judgments or rulings defined in Clause 5 and Clause 6 Article 19 of this Law are quashed according to cassation or reopening procedures.

3. An appellate court shall act as a compensation body if its legally effective appellate judgments or rulings defined in Clause 5 and Clause 6 Article 19 of this Law are quashed according to cassation or reopening procedures.

4. A court conducting trial according to cassation or reopening procedures shall act as a compensation body if its legally effective cassation or reopening rulings defined in Clause 5 and Clause 6 Article 19 of this Law are quashed according to cassation or reopening procedures.

5. A court shall act as a compensation body if its legally effective judgments or rulings defined in Clause 5 and Clause 6 Article 19 of this Law are quashed by the Council of Judges of the Supreme People’s Court according to special procedures, except for the case prescribed in Clause 6 of this Article.

6. The Supreme People’s Court shall act as a compensation body if the Council of Judges of the Supreme People’s Court quashes its legally effective judgments or rulings or those of inferior courts as defined in Clause 5 and Clause 6 Article 19 of this Law according to special procedures and determine damages incurred by the Supreme People’s Court.

7. Courts that have jurisdiction to settle cases as prescribed in the Criminal Procedure Code, the Civil Procedure Code.

Article 38. Compensation bodies in criminal judgment enforcement

1. Criminal enforcement agencies of the People's Police prescribed in the Law on criminal judgment enforcement.

2. Criminal enforcement agencies of the People's Army prescribed in the Law on criminal judgment enforcement.

3. Agencies assigned certain duties of criminal judgment enforcement prescribed in the Law on criminal judgment enforcement.

4. Courts that have jurisdiction to settle cases as prescribed in the Criminal Procedure Code, the Civil Procedure Code.

Article 39. Compensation bodies in civil judgment enforcement

1. Department of civil judgment enforcement and Sub-department of civil judgment enforcement.

2. Enforcement authorities of military zones and equivalent.

3. Courts that have jurisdiction to settle cases as prescribed in the Criminal Procedure Code, the Civil Procedure Code.

Article 40. Determination of compensation bodies in some specific cases

1. In cases where the compensation body is enforcer’s superior body, the compensation body in some specific cases shall be determined as follows:

a) If the compensation body has been totally or partially divided, acquired, or consolidated or dissolved, its successor agency shall act as a compensation body; if there is no successor agency, the body that has issued the dissolution decision shall act as a compensation body; if the body that has issued the dissolution decision is the National Assembly, the Standing Committee of National Assembly, the Government, the Prime Minister, the compensation-managing authority shall have power to determine the compensation body;

b) In a case where multiple law enforcers of multiple agencies jointly cause damage, the agency assuming the prime responsibility shall act as a compensation body; in a case where it is unable to reach a consensus on the compensation body, the competent compensation-managing authority shall determine the compensation body;

c) At the time of handling compensation claim, if the law enforcer causing damage has no longer worked at his/her superior body at the time of causing the damage, such superior body shall act as the compensation body;

d) In case of authorized or mandated performance of official duties, the authorizing or mandating agency shall act as a compensation body. If the authorized or mandated agency performs official duties at variance with authorized or mandated contents, thus causing damage, it shall act as a compensation body.

2. In case of settlement of a claim in the course of criminal procedures or administrative procedures at a court, the court handling the case shall act as a compensation body.

3. In cases where the claimant simultaneously request the enforcer’s superior body and the court that has jurisdiction to settle the claim, either the enforcer’s superior body or the court shall act as the compensation body, whichever accepts the claim first.

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