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

THE GOVERNMENT

Decree No. 16/2010/ND-CP of March 3, 2010, detailing and guiding a number of articles of the Law on State Compensation Liability

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

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

At the proposal of the Minister of Justice,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree details and guides a number of articles of the Law on State Compensation Liability regarding compensation settlement at compensation-liable agencies and reimbursement liability of public-duty performers in administrative management, legal proceedings and judgment enforcement; and state management of compensation work in administrative management and judgment enforcement.

Article 2. Determination of state compensation liability

1. The State shall compensate only for damage referred to in the Law on State Compensation Liability when having sufficient grounds specified in Clauses 1 and 2, Article 6 of the Law on State Compensation Liability.

2. The State will not compensate for damage caused in force majeure events or emergency circumstances in the following cases:

a/ Objective, unforeseeable and insurmountable damage which public-duty performers have applied all necessary measures within their capabilities to prevent;

b/ Damage caused in case a public-duty performer who, for the purpose of avoiding a practical danger which directly threatens the interests of the State or a collective or the lawful rights and interests of his/her own or others, cannot but take an act causing a damage minor than the damage which needs to be prevented;

c/ Damage caused in force majeure events or other emergency circumstances as prescribed by law.

Chapter II

COMPENSATION SETTLEMENT AT COMPENSATION-LIABLE AGENCIES

Article 3. Compensation-liable agencies in administrative management

Compensation-liable agencies in administrative management referred to Clause 1, Article 14 of the Law on State Compensation Liability shall be determined as follows:

1. In case the damage-causing public-duty performer is a cadre or civil servant of a ministry, ministerial-level agency or government-attached agency, this ministry or agency shall pay compensation, except the case specified in Clause 2 of this Article.

2. In case the damage-causing public-duty performer is a civil servant of a general department or directorate, department or another unit with the legal person status and its own account under a ministry, ministerial-level agency or government-attached agency, this general department or directorate, department or unit shall pay compensation.

3. In case the damage-causing public-duty performer is a staff member of a provincial-level People’s Committee, the provincial-level People’s Committee shall pay compensation, except the case specified in Clause 4 of this Article.

4. In case the damage-causing public-duty performer is managed by a specialized agency under a provincial-level People’s Committee under the Government’s Decree No. 13/2008/ND-CP of February 4, 2008, providing for the organization of specialized agencies under provincial-level People’s Committees and other agencies directly managed by provincial-level People’s Committees, such specialized agency shall pay compensation.

5. In case the damage-causing public-duty performer is a staff member of a district-level People’s Committee and directly managed by a specialized agency under the district-level People’s Committee, the district-level People’s Committee shall pay compensation.

6. In case the damage-causing public-duty performer is a staff member of a commune-level People’s Committee or a commune-level cadre or civil servant, the commune-level People’s Committee shall pay compensation.

7. Other state agencies shall pay compensation under decisions of competent compensation state management agencies under this Decree.

Article 4. Compensation-liable agencies in civil judgment enforcement

Compensation-liable agencies in civil judgment enforcement referred to in Clause 2, Article 40 of the Law on State Compensation Liability shall be determined as follows:

1. In case the damage-causing public-duty performer is a civil servant of the General Department for Civil Judgment Enforcement, the General Department shall pay compensation.

2.  In case the damage-causing public-duty performer is a civil servant of a provincial-level Civil Judgment Enforcement Department or the Judgment Enforcement Department of the Ministry of National Defense, such Department shall pay compensation.

3. In case the damage-causing public-duty performer is a civil servant of a district-level Civil Judgment Enforcement Division or the military zone-level Judgment Enforcement Division, such Division shall pay compensation.

Article 5. Determination of compensation-liable agencies

1. Determination of compensation-liable agencies in administrative management and judgment enforcement

The determination of compensation-liable agencies in administrative management and judgment enforcement complies with Articles 14 and 40 of the Law on State Compensation Liability and Articles 3 and 4 of this Decree.

In case damage sufferers cannot identify or no agreement can be reached on compensation-liable agencies, they may request competent compensation state management agencies defined in Chapter IV of this Decree to determine compensation-liable agencies according to the following procedures:

a/ When a damage sufferer cannot identify the compensation-liable agency, within 5 working days after receiving the damage sufferer’s written request, the compensation state management agency shall issue a document identifying the compensation-liable agency;

b/ If no agreement can be reached on the compensation-liable agency, the time limit for issuing a document identifying the compensation-liable agency may be extended but must not exceed 15 days from the date of receipt of a written request from the damage sufferer. In this case, the compensation-liable agency shall be determined as follows:

- At the request of the damage sufferer, the compensation state management agency shall assume the prime responsibility for, and coordinate with agencies involved in causing the damage in, identifying the compensation-liable agency;

- If no agreement can be reached on the identification of the compensation-liable agency, the compensation state management agency shall decide to appoint one of the involved agencies as the compensation-liable agency.

c/ A document identifying the compensation-liable agency must be sent immediately to the damage sufferer and the compensation-liable agency for compliance.

2. Identification of compensation-liable agencies in legal proceedings

a/ The identification of compensation-liable agencies in legal proceedings complies with Articles 29 thru 33 of the Law on State Compensation Liability.

b/ In case damage sufferers cannot identify or no agreement can be reached on compensation-liable agencies, they may request competent agencies to identify compensation-liable agencies under the guidance of the Supreme People’s Court, the Supreme People’s Procuracy, the Ministry of Public Security, the Ministry of National Defense and the Ministry of Justice.

Article 6. Tasks and powers of heads of compensation-liable agencies in the process of compensation settlement

Heads of compensation-liable agencies shall take responsibility before law for compensation settlement and have the following tasks and powers:

1. To organize compensation settlement according to the procedures specified in Article 9 of this Decree;

2. To appoint their representatives to settle compensation;

3. To guide and direct their representatives to settle compensation under law;

4. To report on compensation settlement under Article 12 of this Decree;

5. To supply compensation settlement-related decisions to public-duty performers who have caused the damage;

6. To perform other tasks and exercise other powers provided for by law.

Article 7. Appointment of representatives to settle compensation

1. Right after accepting a compensation claim, the head of the compensation-liable agency shall issue a decision appointing a representative to settle compensation (below referred to as the representative).

In case the head of an agency is the public-duty performer who has caused the damage or the spouse, paternal grandfather, paternal grandmother, maternal grandfather, maternal grandfather, blood father, adoptive father, blood mother or adoptive mother (of spouse), offspring, adopted child or sibling (of spouse), paternal grandchild or maternal grandchild of the public-duty performer who has caused the damage or of the damage sufferer (below collectively referred to as the related person), the leadership of such agency shall discuss and agree to appoint a representative of the leadership to take responsibility for compensation settlement.

In case the compensation-liable agency operates under the collective regime, the agency’s collective shall decide to appoint its representative.

2. The representative must fully satisfy the following conditions:

a/ Being a leading official of the divisional, equivalent or higher rank;

b/ Having work experience in the branch or domain in which the compensation liability arises;

c/ Being other than the related person of the public-duty performer who has caused the damage or of the damage sufferer.

Article 8. Tasks and powers of the representative

The representative shall take responsibility before the head of the compensation-liable agency for compensation settlement and has the following tasks and powers:

1. To verify the damage under Article 18 of the Law on State Compensation Liability;

2. To negotiate with the damage sufferer about compensation settlement under Article 19 of the Law on State Compensation Liability;

3. To report to the head of his/her agency on damage verification and negotiation results;

4. To draft decisions on compensation settlement;

5. To perform other tasks related to compensation settlement as assigned by the head of his/her agency.

Article 9. Procedures for compensation settlement at compensation-liable agencies

1. Within 5 working days after accepting a compensation claim, the compensation-liable agency shall verify the damage as a ground for determining the compensation amount under Article 18 of the Law on State Compensation Liability.

2. Within 3 working days after finishing the damage verification, the compensation-liable agency shall negotiate with the damage sufferer under Article 19 of the Law on State Compensation Liability.

3. Within 3 working days after finishing the negotiation, the compensation-liable agency shall finalize a draft decision on compensation settlement and may send, when necessary, it to concerned agencies for opinion.

4. Based on damage verification and negotiation results and opinions of concerned agencies (if any), the compensation-liable agency shall issue a compensation settlement decision under Article 20 of the Law on State Compensation Liability and take responsibility before law for its decision.

5. As soon as a compensation settlement decision takes effect, the compensation-liable agency shall carry out procedures for allocating and paying the compensation amount under Article 54 of the Law on State Compensation Liability.

Article 10. Handover of compensation settlement decisions to damage sufferers

1. A compensation settlement decision shall be handed to the damage sufferer by:

a/ A representative of the compensation-liable agency;

b/ A representative of the commune-level People’s Committee of the locality where the damage-suffering individual resides or the damage-suffering organization is headquartered, in case this decision is handed through the commune-level People’s Committee; or,

c/ Another person as provided for by law.

2. Procedures for handing a compensation settlement decision

a/ The person handing a compensation settlement decision shall directly hand it over to the damage sufferer. The sufferer shall sign the record or book on delivery and receipt of compensation settlement decisions. The date of such signing is the date of receipt of the compensation settlement decision.

b/ If the damage sufferer is absent, the compensation settlement decision may be handed to his/her relative with full civil act capacity who resides together with him/her. This relative shall sign the record or book on delivery and receipt of compensation settlement decisions. The date of signing is the date the sufferer receives the compensation settlement decision.

If the damage sufferer has no relative who has full civil act capacity and resides together with him/her or this relative refuses to receive on his/her behalf the compensation settlement decision, this decision may be handed though the commune-level People’s Committee of the locality where the sufferer resides.

In case the compensation settlement decision is handed through another person, such handover must be made in a record stating the damage sufferer’s absence, the person to whom the decision is handed; reason for and date and time of handover; the relationship between the on-behalf recipient of the decision and the sufferer; and the commitment to hand the decision directly to the sufferer. Such record must bear the signatures of the person agreeing to hand the decision, the person handing the decision and the witness.

3. If the damage sufferer is absent while the time of his/her return or his/her address is unknown, the person handing the compensation settlement decision shall make a record of failure to hand the decision, which must bear the signature of the provider of information on the damage sufferer.

4. If the damage sufferer refuses to receive the compensation settlement decision, the decision-handing person shall make a record stating the reason for refusal and have it certified by the head of the population group or the commune-level People’s Committee or police division.

Article 11. Procedures for retuning assets

In the process of compensation settlement, if having grounds for returning assets under Article 50 of the Law on State Compensation Liability, the compensation-liable agency shall return assets according to the following procedures:

1. Within 5 working days from the date of annulment of a decision on asset seizure, temporary detention, distraint or confiscation, the agency which has issued this decision shall notify the damage sufferer of the return of his/her assets. Such notice must indicate the place and time of returning assets.

2. The return of assets shall be conducted at the head office of the agency which has issued the decision on asset seizure, temporary detention, distraint or confiscation or in the place where the assets are preserved.

All expenses for the transportation, assembly and restoration of the original state of assets shall be borne by the agency which has issued the decision on asset seizure, temporary seizure, distraint or confiscation.

3. When returning assets, a civil servant who is assigned to return assets shall request the damage sufferer or the person authorized by the damage sufferer to receive assets to produce papers evidencing that he/she is the person having his/her assets seized, temporarily detained, distrained or confiscated or is the person authorized by the former.

4. A civil servant assigned to return assets shall request the asset recipient to check the quantity, volume and other characteristics of assets to the witness of the keeper of the warehouse where assets are preserved.

5. The return of assets must be made in a written record signed by the asset recipient, the representative of the agency which has issued the decision on asset seizure, temporary detention, distraint or confiscation, the civil servant assigned to return assets and the keeper of the warehouse where assets are preserved.

Article 12. Responsibility to report on compensation settlement

1. In the process of compensation settlement, the compensation-liable agency in administrative management and judgment enforcement shall report to the immediate superior state agency on:

a/ Acceptance of compensation claims;

b/ Issuance of compensation settlement decisions;

c/ The damage sufferer’s initiation of a lawsuit to request the court to settle compensation;

d/ Carrying out of compensation payment procedures.

Such report must be enclosed with copies of documents related to compensation settlement.

2. Compensation-liable agencies which are ministries, ministerial-level agencies, government-attached agencies or provincial-level People’s Committees shall report on compensation settlement under Clause 1 of this Article to the Ministry of Justice.

3. Compensation-liable agencies in legal proceedings shall report on compensation settlement to competent state agencies under the guidance of the Supreme People’s Court, the Supreme People’s Procuracy, the Ministry of Public Security, the Ministry of National Defense and the Ministry of Justice.

4. In addition to the tasks defined in Clauses 1, 2 and 3 of this Article, compensation-liable agencies shall, at the request of competent compensation state management agencies, promptly report on compensation settlement to meet the requirements of state management of compensation work.

Chapter III

REIMBURSEMENT LIABILITY OF PUBLIC-DUTY PERFORMERS

Article 13. Setting up of a Council for considering the reimbursement liability

1. Right after completing the compensation payment, the head of the compensation-liable agency shall issue a decision to set up a Council for considering the reimbursement liability (below referred to as the Council) under Clause 1, Article 58 of the Law on State Compensation Liability.

2. This Council is composed of:

a/ A leader of the compensation-liable agency as its chairman;

b/ A representative of the trade union organization of the compensation-liable agency;

c/ The head of the unit directly managing the public-duty performer who has caused the damage;

d/ A person in charge of finance-accounting affairs of the compensation-liable agency;

e/ Some experts in relevant economic, technical and legal matters.

In case many public-duty performers of different agencies jointly cause the damage, representatives of the leaderships of these agencies shall join the Council.

Council members may not be the related persons of public-duty performers who have caused damage or of damage sufferers under Clause 1, Article 7 of this Decree.

Article 14. Tasks and powers of the Council

The Council has the following tasks and powers:

1. To consider and assess the extent of damage and fault of the public-duty performer who has caused the damage;

2. To determine financial conditions of the public-duty performer who has caused the damage;

3. To propose the to-be-reimbursed amount and reimbursement method to the head of the compensation-liable agency;

4. The Council shall automatically disband after fulfilling its tasks.

Article 15. Working methods of the Council

1. The Council shall meet only when two-thirds or more of its members are present.

2. The Council shall work on the principle of collective discussion and majority vote-based decision. In the process of discussion and decision, Council members must show objectivity and democracy and observe law.

3. The proposition of to-be-reimbursed amounts and reimbursement methods shall be made by casting secret ballots and decided on the principle of vote of majority of total Council members attending the meeting.

In case the numbers of votes for and votes against are equal, the to-be-reimbursed amount and reimbursement method shall be decided by the Council Chairman.

4. Minutes of Council meetings must be considered and approved by the Council and signed by the Council Chairman.

5. When necessary, the Council may invite the public-duty performer who has caused the damage to attend its meeting.

Article 16. Determination of to-be-reimbursed amounts

The determination of to-be-reimbursed amounts shall be based on the grounds specified in Clause 1, Article 57 of the Law on State Compensation Liability and must adhere to the following principles:

1. In case a public-duty performer intentionally causes the damage but is not subject to penal liability examination, the compensation-liable agency shall, based on the extent of damage caused and his/her financial conditions, decide to ask him/her to reimburse an amount not exceeding his/her 36 months’ salary at the time of decision on the reimbursement.

In case a public-duty performer intentionally causes the damage and is subject to penal liability examination for his/her illegal act causing such damage, he/she shall perform the reimbursement liability under Article 18 of this Decree.

2. If a public-duty performer unintentionally causes damage, the compensation-liable agency shall, based on the extent of damage caused and his/her financial conditions, decide to ask him/her to reimburse an amount not exceeding his/her 3 months’ salary at the time of decision on reimbursement, except the case specified in Clause 2, Article 56 of the Law on State Compensation Liability.

Article 17. Issuance of reimbursement decisions

1. Based on the Council’s proposal, competent persons defined in Article 59 of the Law on State Compensation Liability shall issue reimbursement decisions.

2. In case the person competent to issue reimbursement decisions holds opinions divergent from the Council’s proposal, he/she may make decision and take responsibility before law for such decision.

Article 18. Determination of the reimbursement liability of public-duty performers subject to penal liability examination

1. A public-duty performer who intentionally causes the damage and is subject to penal liability examination for his/her illegal act causing such damage shall reimburse the whole amount already compensated by the State to the damage sufferer under a ruling of the court competent to settle criminal cases.

2. The compensation-liable agency may request the court to determine the compensation or reimbursement liability of the accused being the public-duty performer who has caused the damage under Article 28 of the Criminal Procedure Code for reimbursing the amount already compensated by the State to the damage sufferer.

Article 19. Collection, remittance, management and use of reimbursed amounts

1. Persons with reimbursement liability shall comply with regulations on the time limit, amount and method of reimbursement indicated in the reimbursement decision.

2. In case the reimbursement liability has been determined under Clause 1, Article 18 of this Decree, civil judgment enforcement procedures shall be carried out for collecting amounts to be reimbursed.

3. Compensation-liable agencies shall fully and promptly collect and remit the whole reimbursed amounts into the state budget.

Article 20. Handling of public-duty performers who deliberately fail to perform the reimbursement liability

1. The person with reimbursement liability who has been notified thrice by the compensation-liable agency of his/her reimbursement obligation but deliberately fails to perform this obligation shall be disciplined under law.

2. If the person with reimbursement liability has moved to another agency within the state apparatus, such agency shall urge him/her to perform the reimbursement obligation and decide on handling measures under Clause 1 of this Article.

3. If the person with reimbursement liability no longer works in a state agency, the compensation-liable agency shall take measures to recover the reimbursed amount under law.

Chapter IV

STATE MANAGEMENT OF COMPENSATION WORK

Article 21. Contents of state management of compensation work

1. Promulgating according to competence or submitting to competent state agencies for amendment, supplementation or promulgation legal documents on state compensation liability.

2. Disseminating and propagating the Law on State Compensation Liability and guiding documents of competent state agencies.

3. Guiding compensation-liable agencies to settle compensation.

4. Providing compensation settlement skill training for compensation settlement officers.

5. Identifying compensation-liable agencies when so requested by damage sufferers or no agreement can be reached on compensation-liable agencies.

6. Monitoring, examining and inspecting the compensation settlement.

7. Monitoring and urging the payment of compensations and performance of the reimbursement liability.

8. Settling complaints and denunciations and handling violations of the law on state compensation liability.

9. Making statistics of, reviewing and evaluating the performance of state compensation liability.

Article 22. Responsibilities of the Ministry of Justice

1. To assist the Government in performing the unified state management of compensation work in administrative management and judgment enforcement, and have the following tasks and powers:

a/ To promulgate according to its competence or submit to the Government for amendment, supplementation or promulgation legal documents on state compensation liability;

b/ To provide professional guidance on compensation settlement;

c/ To settle problems related to the implementation of the law on state compensation liability;

d/ To identify compensation-liable agencies when so requested by damage sufferers or no agreement can be reached on compensation liability among ministries, ministerial-level agencies and provincial-level People’s Committees according to the procedures specified at Point b, Clause 1, Article 5 of this Decree;

e/ To monitor, examine, inspect, and handle violations of the law on state compensation liability nationwide;

f/ To promptly detect in the course of performing the state management of compensation work weaknesses and limitations concerning the working style, qualifications and experience of cadres and civil servants in order to propose handling measures to competent state agencies;

g/ To biannually and annually make statistics of, review and evaluate compensation settlement nationwide and report implementation results to the Government.

2. To coordinate with competent state agencies in performing the state management of compensation work in legal proceedings, and have the following tasks and powers:

a/ To coordinate with the Supreme People’s Court, the Supreme People’s Procuracy and concerned agencies in guiding the compensation settlement in legal proceedings and state management of compensation work in legal proceedings;

b/ To perform the state management of compensation work in legal proceedings under law;

c/ To annually review compensation work in legal proceedings and report implementation results to the Government and competent state agencies.

3. Within the ambit of its functions, tasks and powers, to perform the state management of compensation work under Clauses 1, 2, 3, 4, 6, 7 and 8, Article 21 and Point a, Clause 1, Article 23, of this Decree.

Article 23. Responsibilities of ministries and ministerial-level agencies

1. Ministries and ministerial-level agencies shall, within the ambit of their functions, tasks and powers, perform the state management of compensation work under Clauses 1, 2, 3, 4, 6, 7 and 8, Article 21 of this Decree, and have the following tasks and powers:

a/ To identify compensation-liable agencies when so requested by damage sufferers or no agreement can be reached on compensation liability among agencies under their management according to the procedures specified at Point b, Clause 1, Article 5 of this Decree;

b/ To coordinate with the Ministry of Justice in performing the state management of compensation work;

c/ To biannually and annually make statistics of, review and evaluate compensation work under their management, then submit such to the Ministry of Justice for summarization and reporting to the Government.

2. Legal departments of ministries and ministerial-level agencies shall advise and assist their ministers and heads in performing the state management of compensation work under this Article.

Article 24. Responsibilities of provincial-level People’s Committees

1. Provincial-level People’s Committees shall perform the state management of compensation work in their localities and have the following tasks and powers:

a/ Within the ambit of their functions, tasks and powers, to perform the state management of compensation work under Clauses 2, 3, 4, 6, 7 and 8, Article 21 of this Decree;

b/ To determine compensation-liable agencies when so requested by damage sufferers or no agreement can be reached on compensation liability among specialized agencies under provincial-level People’s Committees  and district-level People’s Committees in localities under their management according to the procedures specified at Point b, Clause 1, Article 5 of this Decree;

c/ To coordinate with the Ministry of Justice in performing the state management of compensation work;

d/ To biannually and annually make statistics of, review and evaluate compensation work under their management, then submit such to the Ministry of Justice for summarization and reporting to the Government.

2. Provincial-level Justice Departments shall advise and assist provincial-level People’s Committees in performing the state management of compensation work in their localities under this Article.

Article 25. Responsibilities of specialized agencies under provincial-level People’s Committees

1. To monitor, urge and examine compensation settlement within their responsibilities.

2. To coordinate with provincial-level Justice Departments in advising and assisting provincial-level People’s Committees to perform the state management of compensation work in localities.

3. To biannually and annually make statistics of, review and evaluate compensation work under their management, then submit such to provincial-level Justice Departments for summarization and reporting to provincial-level People’s Committees.

Article 26. Responsibilities of district-level People’s Committees

District-level People’s Committees shall, within the ambit of their functions, tasks and powers, perform the state management of compensation work under Clauses 2, 3, 6, 7 and 8, Article 21 of this Decree, and have the following tasks and powers:

1. To identify compensation-liable agencies when so requested by damage sufferers or no agreement can be reached on compensation liability among units directly managed by district-level People’s Committees and commune-level People’s Committees in localities under their management according to the procedures specified at Point b, Clause 1, Article 5 of this Decree;

2. To coordinate with provincial-level Justice Departments in performing the state management of compensation work in localities;

3. To biannually and annually make statistics of, review and evaluate compensation settlement under their management, then submit such to provincial-level Justice Departments for summarization and reporting to provincial-level People’s Committees.

Article 27. Allocation of funds for compensation-related state management and compensation settlement

1. Funds used to compensate for damage within the scope of state compensation liability shall be covered by central and local budgets under Chapter VI of the Law on State Compensation Liability.

2. Funds for state management work and compensation settlement shall be covered by the state budget and included in estimates of expenditures for operations of state compensation management and settlement agencies and organizations under the state budget law.

3. The Ministry of Finance shall assume the prime responsibility for, and coordinate with the Ministry of Justice in, guiding the estimation, management and use of state budget funds for compensation-related state management and compensation settlement.

Chapter V

IMPLEMENTATION PROVISIONS

Article 28. Effect and transitional provisions

1. This Decree takes effect on April 20, 2010.

2. The provisions on the reimbursement liability of public-duty performers under Chapter III of this Decree will not apply to the reimbursement settlement in cases in which compensation settlement procedures are carried out under the Government’s Decree No. 47/CP of May 3, 1997, on compensation for damage caused by civil servants or public employees or competent persons of procedure-conducting agencies.

Article 29. Implementation responsibility

1. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and chairpersons of provincial-level People’s Committees shall implement this Decree.

2. The Minister of Justice shall, within the ambit of his/her tasks and powers, coordinate with concerned ministries and branches in detailing and guiding the articles and clauses as assigned in this Decree to meet the requirements of state management of compensation work.-

On behalf of the Government
Prime Minister
NGUYEN TAN DUNG