Circular no. 03/2013/TT-BTP dated January 31, 2013 of the Ministry of Justice guidelines for the state management on compensation work in administrative management operation

THE MINISTRY OF JUSTICE

Circular No. 03/2013/TT-BTP dated January 31, 2013 of the Ministry of Justice guiding the state management on administrative management operation’s compensation

Pursuant to the Law on State Compensation Liability dated June 18, 2009;

Pursuant to Decree No. 16/2010/ND-CP dated March 03, 2010 of the Government detailing and guiding a number of articles of the Law on State Compensation Liability;

Pursuant to Decree No. 93/2008/ND-CP dated August 22, 2008 of the Government defining the functions. tasks, powers and organizational structure of the Ministry of Justice;

Minister of Justice issues Circular guiding the implementation of state management of compensation in administrative management operation,

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular guides the implementation of state management of compensation in administrative management activities to identify the agency liable for compensation; compensation settlement profession; answer of problems related to the implementation the law on State liability; monitor, supervise, inspect; make statistics, review and report on the work of state compensation.

Article 2. Subject of application

This Circular applies to the agency responsible for managing the state management of compensation of the management and administrative agencies, organizations and individuals related to the state compensation.

Article 3. Explanation of term

1. Identification of agency liable for compensation is the competent state agency performing procedures to identify one of the agencies concerned to cause damage to be the agency liable for compensation.

2. Agency concerned causing damage is the agency whose official has unlawful acts causing damage in administrative management.

3. Professional guidance for compensation settlement is that the competent state agency guides the agency liable for compensation to apply the law on the State compensation liability.

4. Answer of problems related to the implementation of the law on liability of the State is that the competent State agency shall base on the provisions of law to answer, explain the contents the agencies, organizations and individuals think there are problems in the legal implementation of the State compensation liability.

5. Monitoring of compensation settlement activities is the competent State agency shall capture information and data, the situation of State compensation settlement to perform the State management tasks on the compensation.

6. Urging of compensation settlement activities is that the competent State agency requires the agency liable for compensation to carry out the State compensation activities in accordance with regulation of law.

7. Inspection of compensation settlement activities is that the State competent agency shall consider and assess the legality and properness of State compensation settlement activities for agency liable for compensation.

Chapter 2.

IDENTIFICATION OF AGENCY LIABLE FOR COMPENSATION

Article 4. Identification of agency liable for compensation under competence of Ministries and ministerial-level agencies

1. Ministries, ministerial-level agencies (hereinafter referred to as the Ministry) shall identify the agency liable for compensation in case the damage sufferer requests or there is no agreement on compensation liability between agencies under their management.

Legal institutions (for the Ministry), the Department of State Compensation (for the Ministry of Justice) shall advise and assist the Ministry to implement the tasks specified in this Clause.

2. Where there is no agreement among the agencies organized under vertical system under Ministries, the legal institution of that agency shall advice and assist heads of agency to identify the agency liable for compensation.

Article 5. Identification of agency liable for compensation under competence of provincial-level People’s Committee

Provincial-level People’s Committee shall identify the agency liable for compensation I case the damage sufferer requests or there is no agreement on compensation liability under its management in the following cases:

1. Between communal-level People’s Committee;

2. Between communal-level People’s Committee not in the same district;

3. Between professional agencies under provincial-level People’s Committee;

4. Between professional agencies under provincial-level People’s Committee.

Department of Justice shall advice and assist provincial-level People’s Committee to implement tasks specified in this Article.

Article 6. Identification of agency liable for compensation under competence of district-level People’s Committee

Determine the district-level People s Committees shall have to pay compensation in case of damage required or there is no agreement on liability between the commune-level People s Committees under their management.

Division of Justice shall advice and assist provincial-level People’s Committee to implement tasks specified in this Article.

Article 7. Identification of agency liable for compensation

1. Between Ministries;

2. Between provincial-level People’s Committee;

3. Between Ministries and provincial-level People’s Committee.

Department of State Compensation shall advise and assist the Ministry of Justice to perform the tasks specified in this Article.

Article 8. Procedures to identify agency liable for compensation

1. The competent agency shall identify the agency liable for compensation specified in Articles 4, 5, 6 and 7 of this Circular shall perform procedures to determine the agency responsible for compensation under the provisions of Article 5 of Decree No. 16/2010/ND-CP.

2. Where there is no agreement on the agency liable for compensation, the determination of agency liable for compensation shall comply with the following procedures:

a) Within 05 working days from the date of the request for identifying agency liable for compensation, the agency having competence to identify the agency liable for compensation shall preside over a meeting with relevant agency causing damage to the agree upon the agency liable for compensation.

Where agencies do not agree on compensation agency liable for compensation, the agency having competence to identify the agency liable for compensation shall make a decision on one agency among the number of agencies concerned causing damage to be liable for compensation;

b) Documents identifying the agency liable for compensation must be sent immediately to the relevant agencies causing damage, the victims or their relatives and the agencies liable for compensation for implementation.

Article 9. Coordinating to identify agency liable for compensation

1. Within the scope of duties and powers, the agency concerned causing damage and state management agency on the compensation shall coordinate to identify the agency liable for compensation.

2. The proposal for coordination to identify agency liable for compensation shall be made​​in writing.

Chapter 3.

PROFESSIONAL GUIDANCE FOR COMPENSATION SETTLEMENT

Article 10. Professional guidance of Ministries

1. Ministries shall guide the professional compensation settlement for agencies and units under their management.

Legal institutions (for the Ministry), the Department of State Compensation (for the Ministry of Justice) shall advise and assist the implementation of the tasks specified in this clause.

2. For agencies under the Ministry are organized under vertical system from the central to the local level, the heads of the agencies attached to the Ministry in central shall make professional guidance on compensation for the agencies and units under their management.

Legal institutions of agencies under Ministries shall advise and assist heads of agencies to perform the tasks specified in this Clause.

Article 11. Professional guidance of provincial-level People’s Committee

Provincial-level People’s Committee shall make professional guidance on compensation to the following agencies:

1. Specialized agencies under provincial-level People’s Committee;

2. District-level People’s Committee.

Department of Justice shall advice and assist provincial-level People’s Committee to implement tasks specified in this Article.

Article 12. Professional guidance for district-level People’s Committee

District-level People’s Committee shall make professional guidance for communal-level People’s Committee

Division of Justice shall advice and assist district -level People’s Committee to implement tasks specified in this Article.

Article 13. Professional guidance of Ministry of Justice

Ministry of Justice shall make professional guidance on compensation for the following cases:

1. Case related to the sectors, areas or different localities;

2. On the requirement of the agency liable for in the administrative management activities.

Department of State Compensation shall advise and assist the Ministry of Justice to perform the tasks specified in this Article.

Article 14. Time limit for professional guidance on compensation settlement

Within 5 working days from the date of receipt of a written request and receipt of all relevant documents, the competent authority shall response in writing. Where the case is difficult and complex, the time limit may be extended but not more than 15 days.

Chapter 4.

ANSWER OF LEGAL PROBLEMS, SUPPLY OF INFORMATION AND GUIDANCE OF RPCEDURES

Article 15. Implementing the answer of legal problems

Ministry of Justice shall solve problems related to the legal implementation on the State compensation liability in administrative management activities.

Department of State Compensation shall advise and assist the Ministry of Justice to perform the tasks specified in this Article.

Article 16. Form and time limit for answer of legal problems

1. The answer of legal problems shall be done in the forms as follows:

a) Answer in writing;

b) Answer through internet;

c) Direct answer or through telephone;

d) Other forms as prescribed by law.

2. Within 15 days from the date of receipt of all information related to the contents required for answer of problems, the Ministry of Justice shall answer on the requirement of agencies, organizations and individuals. In case of complex content, the time limit may be extended but not more than 30 days.

3. In case of necessity, the answer of problems can be made through consultation of experts or agencies concerned.

Article 17. Supply of information and procedure guidance to damage sufferers to exercise their right to claim

1. Department of State Compensation shall provide information and make guidance on procedures to support the damage sufferers to exercise their right to claim at the request of the damage sufferers in the area of public administration nationwide.

2. Department of Justice shall provide information and make guidance on procedures to support the damage sufferers to exercise their right to claim at the request of the damage sufferers in administrative management activities in the scope of locality.

3. Division of Justice shall provide information and make guidance on procedures to support the damage sufferers to exercise their right to claim at the request of the damage sufferers in administrative management activities in the scope of locality.

4. Based on each specific case, the supply of information and procedure guidance to support the implementation of right to claim is made in writing or speak directly to the damage suffers.

Chapter 5.

MONITORING, URGE AND INSPECTION

Section 1. MONITORING COMPENSATION SETTLEMENT ACTIVITIES

Article 18. Monitoring compensation settlement activities

1. The Ministry of Justice shall monitor compensation settlement activities in administrative management activities nationwide.

Department of State Compensation shall advise and assist the Ministries to implement the tasks specified in this clause.

2. Legal institutions (for the Ministry), the Department of State Compensation (for the Ministry of Justice) shall advise and assist the Ministries to monitor the compensation settlement activities in administrative management under management of Ministries.

3. Department of Justice to advise and assist the provincial-level People s Committee to monitor compensation settlement activities in administrative management activities within the locality.

4. Division of Justice to advise and assist the district-level People s Committee to monitor compensation settlement activities in administrative management activities within the locality.

Article 19. Ground for monitoring compensation settlement activities

1. Making report on result of compensation requirement of the agency liable for compensation.

2. Making annual and biannual report on the implementation of Law on State Compensation Liability.

3. Judgment and ruling of the Court related to the State compensation.

4. Press information on the requirement and claim settlement.

SECTION 2. URGING COMPENSATION SETTLEMENT ACTIVITIES

Article 20. Urging compensation settlement activities

1. The Ministries shall urge the compensation settlement activities in the administrative management under their management.

Legal institutions (for Department), Department of State Compensation (for the Ministry of Justice) shall advise and assist the Ministries to implement the tasks specified in this clause.

2. In case there is no agreement between agencies organized under vertical system under Ministries, the legal institutions of that agency shall advice and assist the head of that agency to identify the agency liable for compensation.

3. Provincial-level People’s Committees shall urge the compensation settlement activities in the administrative management under their management for the following agencies:

a) Specialized agencies under provincial-level People’s Committees;

b) District-level People’s Committees.

Department of Justice shall advise and assist the provincial-level People s Committee to perform the tasks specified in this clause.

4. District-level People’s Committees shall urge the compensation settlement activities in the administrative management under responsibility of communal-level People’s Committees.

Division of Justice shall advice and assist district-level People’s Committees to implement tasks specified in this clause.

Article 21. Grounds for urge of compensation settlement activities

1. Complaints and denunciations, proposals, reflections of the damage sufferer on compensation settlement activities.

2. Result of the monitoring and inspection of compensation settlement activities.

3. Press information on the requirement and compensation settlement.

4. Judgment and ruling of the Court related to the State compensation liability.

Article 22. Procedure for urging compensation settlement activities

1. Within 10 days from the date of the ground of urge specified in Article 21 of this Circular, the agency specified in Article 20 of this Circular shall issue documents urging the agency liable for compensation settlement.

2. The urging document must specify the content and responsibility of the agency liable for compensation.

3. The agency liable for compensation shall implement according to the urging document and make written report to the competent agency to urge the settlement result.

4.In case the agency liable for compensation has difficulties and problems in compensation settlement, it shall make report and ask for guidance opinion from superior agency or state management agency on compensation.

SECTION 3. INSPECTION OF STATE COMPENSATION.

Article 23. Inspection of compensation settlement

1. Ministry of Justice shall inspect the compensation settlement activities in administrative management activities nationwide.

Department of State Compensation shall advise and assist the implementation of the tasks specified in this clause.

2. Ministries shall inspect the compensation settlement activities under their management.

Legal institutions shall advice and assist Ministries to implement tasks specified in this clause.

3. Provincial-level People’s Committees shall inspect the compensation settlement activities in administrative management activities under their management.

Department of Justice shall advice and assist the Provincial-level People’s Committees to implement tasks specified in this clause.

4. District-level People’s Committees shall inspect the compensation settlement activities in administrative management activities under their management.

Division of Justice shall advice and assist the district-level People’s Committees to implement tasks specified in this clause.

Article 24. Grounds for inspection

1. Annual plan of the state management agency on compensation.

2. On the requirement of competent state management agency.

3. Upon reflection of the organizations and individuals on violations of the agency liable for compensation settlement.

4. Notification of result of monitoring and urging activities of compensation settlement.

Article 25. Form of inspection

1. Periodical inspection shall be implemented annually by the state management agency on compensation as planned.

2. Irregular inspection shall be conducted upon grounds specified in clauses 2, 3 and 4, Article 24 of this Circular.

Article 26. Inspection content

The state management agency on compensation shall organize inspection of compensation settlement on the following contents:

1. The legality and properness of compensation settlement, payment of compensation and consideration of refunding responsibility.

2. Implementation of report on result of compensation settlement;

3. State management on compensation and implementation of other tasks on compensation as prescribed by law.

Article 27. Handling measure after inspection

1. After the end of the inspection, the inspection team shall send report on inspection result to the agency which has made a decision on inspection and also to the Ministry of Justice in service of state management on compensation.

 2. In case of detection of signs of law violation, the agency shall perform inspection and handling of under competence or make proposal to the competent state agency the handling and remedial measures as prescribed by law.

Article 28. Inter-sector inspection for compensation

1. The inter-sector inspection for compensation in administrative management activities is implemented in service of state management on compensation.

Ministry of Justice shall assume the prime responsibility and coordinate with the state management agencies on compensation in administrative management activities to organize inter-sector inspection.

2. The inspection content shall comply with provisions in Article 26 of this Circular.

Article 29. Responsibilities of agencies and unit for inspecting

The agencies and unit to be inspected shall prepare all inspection contents on the requirements of the inspecting agency while coordinating with the inspection team to implement the inspection contents as required.

Chapter 6.

STATISTICS, REVIEW AND REPORT ON COMPENSATION

Article 30. Types of reports, time of data gathering

1. Types of reports

a) Periodical report (Biannual and annual);

b) Irregular report.

2. Time of data gathering

a) Biannual report and statistics and time of data gathering shall be from October 01 of the previous year to March 31 of the reporting year.

b) Annual report and statistics and time of data gathering shall be from October 01 of the previous year to September 30 of the reporting year.

c) Irregular report shall gather data on the requirement of the state management agency on compensation.

3. Statistics, review and report on compensation are implemented under the form issued together with this Circular.

Article 31. Sending report on compensation

1. Ministries and provincial-level People’s Committee shall review and make report for submission to the Ministry of Justice (before April 15 for biannual report and before October 15 for annual report).

2. District People’s Committee shall review and make report for submission to provincial-level People’s Committee (before April 10 for biannual report and before October 10 for annual report).

3. For agencies attached to Ministries organized under vertical system from the central to locality, the local agencies shall send report to the superior management agency and also to Department of Justice in order to review and make report to provincial-level People’s Committee (before April 15 for biannual report and before October 15 for annual report). The legal institution under Ministries shall review and make report for submission to the Ministry of Justice.

4.The Ministry of Finance shall carry out statistics and aggregate data to allocate funds to pay for compensation for submission to the Ministry of Justice for review and report to the Government (before April 15 for biannual report and before October 15 for annual report).

Chapter 7.

IMPLEMENTATION PROVISION

Article32. Effect

This Circular takes effect on March 15, 2013.

Article 33. Responsibilities and organization of implementation

1. The State management agencies on compensation, the agencies liable for compensation settlement in administrative management activities and agencies and organizations concerned are liable to execute this Circular.

2. Any problem or difficulty arising during the course of implementation of this Circular should be promptly reported to the Ministry of Justice for study and settlement.

For the Minister

Deputy Minister

Pham Quy Ty