Joint Circular No. 04/2014/TTLT-BTP-TANDTC-VKSNDTC guiding the implementation of the duty to repay by public servants

JOINT CIRCULAR

Guidelines for Implementing the Duty to Repay of Public Servants

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

Pursuant to Decree No. 16/2010/NĐ-CP dated March 3, 2010 of the Government detailing and guiding the implementation of certain provisions of the Law on State Compensation Liability;

The Minister of Justice, the Chief Justice of the Supreme People's Court, and the Procurator-General of the Supreme People's Procuracy issue these Joint Circulars to guide the implementation of the duty to repay of public servants.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

Article 1. These Joint Circulars provide guidance on implementing certain provisions of the Law on State Compensation Liability (hereinafter referred to as the "State Compensation Liability Law") regarding the duty to repay of public servants.

Article 2. The examination of the duty to repay of public servants in civil proceedings and administrative proceedings shall be carried out in accordance with the provisions of Joint Circular No. 01/2012/TTLT-TANDTC-VKSNDTC-BTP dated September 18, 2012, issued by the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Justice guiding the implementation of state compensation liability in civil proceedings and administrative proceedings (hereinafter referred to as "Joint Circular No. 01/2012/TTLT-TANDTC-VKSNDTC-BTP").

In cases where there are contents related to the examination of the duty to repay of public servants in civil proceedings and administrative proceedings that have not been stipulated in Joint Circular No. 01/2012/TTLT-TANDTC-VKSNDTC-BTP, the relevant provisions of these Joint Circulars shall apply.

Article 2. Applicability

These Joint Circulars shall apply to state management agencies responsible for compensation in administrative management and enforcement, state management agencies responsible for compensation in proceedings, agencies with compensation liability, agencies involved in the implementation of the duty to repay, persons with the duty to repay, and other agencies, organizations, and individuals specified in these Joint Circulars.

Article 3. Explanation of Terms

In this Circular, the following terms shall be understood as follows:

Point 1. Intentional damage is a situation where a person recognizes that their actions will cause damage to others but still carries them out and desires or, although not desiring, allows the damage to occur.

Point 2. Negligent damage is a situation where a person does not foresee that their actions may cause damage, even though they should or could have foreseen the damage would occur, or foresees that their actions may cause damage but believes that the damage will not occur or can be prevented.

Point 3. A person with the duty to repay is a public servant whose unlawful actions cause damage to organizations or individuals, thereby generating state compensation liability.

Point 4. An agency involved in the implementation of the duty to repay is an agency directly managing a public servant who jointly causes damage but is not the agency with compensation liability.

Article 4. Tasks and Authorities of the Agency with Compensation Liability in Examining the Duty to Repay of Public Servants

Clause 1. Supervise and direct the Examination Committee to implement the examination of the duty to repay of public servants.

Clause 2. Request relevant agencies to cooperate in examining the duty to repay of public servants who have caused damage when such public servants are directly managed by those agencies or when public servants under their management have transferred to another agency.

Clause 3. If necessary, the agency with compensation liability may seek opinions from relevant agencies regarding the examination of the duty to repay of public servants.

Clause 4. Issue a Repayment Decision in accordance with Article 17 of Decree No. 16/2010/NĐ-CP dated March 3, 2010, of the Government detailing and guiding the implementation of certain provisions of the Law on State Compensation Liability (hereinafter referred to as "Decree No. 16/2010/NĐ-CP").

Clause 5. Resolve complaints from persons with the duty to repay if they disagree with the Repayment Decision and file a complaint against it in accordance with the law.

Clause 6. Participate in litigation before the Court as a defendant when a person with the duty to repay initiates a lawsuit challenging the Repayment Decision issued by themselves.

Clause 7. Notify the implementation of the duty to repay according to the effective Repayment Decision in accordance with these Joint Circulars.

Clause 8. Report on the examination of the duty to repay of public servants in accordance with these Joint Circulars.

Clause 9. Report to the competent authority about the situation where a person with the duty to repay has no estate for their heirs to fulfill the duty to repay in accordance with these Joint Circulars.

Clause 10. Initiate a lawsuit requesting a public servant with the duty to repay to fulfill the repayment obligation in accordance with these Joint Circulars.

Clause 11. Request the enforcement agency to enforce the judgment of the Court declaring a person with the duty to repay to fulfill the repayment obligation.

Article 5. Duties and powers of relevant agencies in examining the liability for repayment of public servants

1. Coordinate with the agency responsible for compensation to examine the liability for repayment of public servants according to the request of the agency responsible for compensation.

2. Appoint representatives from units directly managing public servants who have caused damage to participate in the Council for examining liability for repayment in accordance with Point c Clause 2 Article 13 Decree No. 16/2010/NĐ-CP.

3. Urge persons under their management who are liable for repayment to fulfill their liability for repayment according to the Repayment Decision that has taken legal effect issued by the agency responsible for compensation when such person has also caused damage in accordance with Clause 2 Article 57 Law on Compensation for Damage Caused by State Administrative Acts and Official Acts.

4. Urge persons under their management who are liable for repayment to fulfill their liability for repayment according to the Repayment Decision that has taken legal effect issued by the agency responsible for compensation when such person has transferred to their agency from the agency responsible for compensation in accordance with Clause 2 Article 20 Decree No. 16/2010/NĐ-CP.

Chapter II

PROCEDURE AND PROCEDURAL REQUIREMENTS FOR EXAMINING LIABILITY FOR REPAYMENT OF PUBLIC SERVANTS

HOÀN TRẢ CỦA NGƯỜI THI HÀNH CÔNG VỤ

Article 6. Establishment of the Council for Examining Liability for Repayment of Public Servants

1. Immediately after completing the payment of compensation money, the head of the agency responsible for compensation must issue a Decision to establish the Council for Examining Liability for Repayment to determine the liability for repayment and the amount of repayment for public servants who have caused damage in accordance with Clause 1 Article 58 Law on Compensation for Damage Caused by State Administrative Acts and Official Acts and Clause 1 Article 13 Decree No. 16/2010/NĐ-CP.

2. The composition of the Council for Examining Liability for Repayment includes individuals specified in Clause 2 Article 13 Decree No. 16/2010/NĐ-CP.

In cases where the agency managing the public servant who has caused damage does not have direct management, then such agency shall be responsible for appointing a representative leader to participate in the Council for Examining Liability for Repayment.

In cases where it is necessary to evaluate and determine the degree of fault of the person liable for repayment as the basis for determining the amount of repayment, the composition of the Council for Examining Liability for Repayment must include members who are specialized legal experts appropriate to the field of work related to illegal acts causing damage.

3. The Council for Examining Liability for Repayment performs its duties and powers in accordance with Article 14 Decree No. 16/2010/NĐ-CP.

4. The Council for Examining Liability for Repayment operates in accordance with the method prescribed in Article 15 Decree No. 16/2010/NĐ-CP.

Article 7. Determination of Fault of Public Servants as Basis for Determining Amount of Repayment

1. The Council for Examining Liability for Repayment determines the fault of public servants based on the content of documents from competent state authorities identifying the actions of public servants as illegal or documents from competent judicial authorities determining that the victim is entitled to compensation in accordance with Article 26 Law on Compensation for Damage Caused by State Administrative Acts and Official Acts.

In cases where the documents stipulated in Clause 1 of this Article do not identify the fault of public servants, the Council for Examining Liability for Repayment will base its determination of the fault of the person liable for repayment on materials and evidence provided by the parties and circumstances of the case, applying civil law provisions and provisions at Clause 1, Clause 2 Article 3 of this Circular.

2. Proposals regarding the determination of the fault of the person liable for repayment are made through secret ballot and according to the majority principle among the members of the Council for Examining Liability for Repayment present.

In cases where the number of votes is equal, the determination of the fault of public servants will be decided by the Chairman of the Council for Examining Liability for Repayment.

Article 8. Determination of the amount to be reimbursed for public servants

1. Principles for determining the amount to be reimbursed

a) The determination of the amount to be reimbursed for public servants shall be carried out in accordance with the provisions of Article 16 and Article 18 of Decree No. 16/2010/NĐ-CP;

b) The amount to be reimbursed for public servants shall be determined at a maximum not exceeding the actual amount that the State has paid to the person suffering damage.

2. Determination of the amount to be reimbursed in cases where public servants negligently cause damage

a) In cases where the actual compensation amount paid is less than thirty (30) million VND, the amount to be reimbursed shall be determined at a maximum not exceeding one (01) month's salary of that person at the time of the reimbursement decision;

b) In cases where the actual compensation amount paid is from thirty (30) million VND to less than one hundred (100) million VND, the amount to be reimbursed shall be determined at a minimum of one (01) month's salary and a maximum not exceeding two (02) months' salary of that person at the time of the reimbursement decision;

c) In cases where the actual compensation amount paid is more than one hundred (100) million VND, the amount to be reimbursed shall be determined at a minimum of one (01) month's salary and a maximum not exceeding three (03) months' salary of that person at the time of the reimbursement decision.

3. Determination of the amount to be reimbursed in cases where public servants intentionally cause damage but have not reached the level of criminal prosecution

a) In cases where the actual compensation amount paid is less than one hundred (100) million VND, the amount to be reimbursed shall be determined at a minimum of three (03) months' salary and a maximum not exceeding twelve (12) months' salary of that person at the time of the reimbursement decision;

b) In cases where the actual compensation amount paid is from one hundred (100) million VND to less than five hundred (500) million VND, the amount to be reimbursed shall be determined at a minimum of twelve (12) months' salary and a maximum not exceeding twenty-four (24) months' salary of that person at the time of the reimbursement decision;

c) In cases where the actual compensation amount paid is more than five hundred (500) million VND, the amount to be reimbursed shall be determined at a minimum of twenty-four (24) months' salary and a maximum not exceeding thirty-six (36) months' salary of that person at the time of the reimbursement decision.

4. The salary of the person responsible for reimbursement under Paragraphs 2 and 3 of this Article includes their salary at the time specified in the Reimbursement Decision and other allowances (if any) as prescribed by laws on social insurance.

Article 9. Issuing the Reimbursement Decision

1. The time limit, authority to issue the Reimbursement Decision, and the delivery of the Reimbursement Decision shall be implemented in accordance with the provisions of Clause 2, Article 58 of the Law on State Financial Management and Public Asset Management.

In cases where the compensation liable agency is an agency as stipulated in Point d and Point đ, Clause 2, Article 14 of the Law on State Financial Management and Public Asset Management, and the public servant responsible for reimbursement is not directly managed by that agency, the compensation liable agency must send the Reimbursement Decision to the agency directly managing that person and the immediate superior agency of that agency.

2. The procedures for issuing and the responsibilities of the authority issuing the Reimbursement Decision shall be implemented in accordance with the provisions of Article 17 of Decree No. 16/2010/NĐ-CP.

Article 10. Implementation of repayment

1. Repayment shall be implemented in accordance with the provisions of Article 62 of the Law on State Responsibility for Compensation.

In cases where it is necessary to determine whether repayment will be made once or multiple times, the Council examining the responsibility for repayment shall consider the economic conditions, actual income, and the number of dependents subject to personal income tax deductions under the law caused by the person responsible for repayment to decide on the method of repayment.

If necessary, the Council examining the responsibility for repayment may invite the public servant who caused the damage to attend the Council's meeting.

2. Where a public servant makes a single repayment, within thirty days from the date the Repayment Decision becomes legally effective, the person responsible for repayment must pay the full amount determined in the Repayment Decision.

3. In case repayment is carried out multiple times, the person responsible for repayment shall make payments according to the amounts and deadlines specified in the Repayment Decision.

Article 11. Obligation to notify about the implementation of the repayment responsibility

1. After the Repayment Decision becomes legally effective, the agency responsible for compensation shall have the obligation to notify the person responsible for repayment about the implementation of the repayment responsibility.

The notification shall be carried out at most three times, with a maximum interval of thirty days between each notification.

2. The notification must be made in writing or directly notified to the public servant responsible for repayment.

In cases where the notification is directly made to the person responsible for repayment, the notification must be recorded in a protocol signed by the public servant responsible for repayment and the notifier.

Article 12. Collection and Payment of Repayment Money

1. The collection and payment of repayment money shall be carried out in accordance with the provisions of Article 63 of the Law on State Responsibility for Compensation, Article 19 of Decree No. 16/2010/NĐ-CP, and Article 9 of Circular Joint Circular No. 71/2012/TTLT-BTC-BTP dated May 9, 2012 issued by the Ministry of Finance and the Ministry of Justice on the preparation of budgets, management, utilization, and settlement of funds for the implementation of state compensation responsibilities (hereinafter referred to as Circular Joint Circular No. 71/2012/TTLT-BTC-BTP).

2. The collection and payment can be carried out in the following forms:

a) Payment in cash.

In cases where the public servant responsible for repayment pays the repayment money in cash, the payment shall be made to the person in charge of financial and accounting work at the agency responsible for compensation.

b) Transfer to the account at the Treasury of the agency responsible for compensation.

In cases where the person responsible for repayment pays the repayment money by transferring to the account at the Treasury of the agency responsible for compensation, the person in charge of financial and accounting work at the agency responsible for compensation shall have the obligation to notify the person responsible for repayment of the account number at the Treasury of the agency responsible for compensation to facilitate the transfer.

3. For cases where repayment is made by gradually deducting from the monthly salary of the public servant responsible for repayment, the collection and payment of repayment money shall be carried out in accordance with Point b Clause 2 Article 9 of Circular Joint Circular No. 71/2012/TTLT-BTC-BTP.

Article 13. Responsibility for Reporting on the Examination of Liability for Repayment

1. During the process of examining liability for repayment, the compensation responsible agency must report to the directly superior state agency on the following contents:

a) The establishment of the Council for Examining Liability for Repayment;

b) The amount of repayment and the method of repayment;

c) Collection of the repayment amount into the state budget;

d) Complaints or lawsuits against the Decision on Repayment (if any).

Attached to the report must be copies of relevant documents related to the examination of liability for repayment.

2. In cases where the compensation responsible agency is a Ministry, an agency equivalent to a Ministry, an agency under the Government, or a People's Committee of a province or centrally governed municipality (hereinafter referred to as provincial-level People's Committee), the report on the examination of liability for repayment as stipulated in Clause 1 of this Article shall be submitted to the Ministry of Justice.

3. Compensation responsible agencies involved in judicial proceedings must report on the examination of liability for repayment to their directly superior agencies and central judicial agencies.

4. In addition to the tasks specified in Clauses 1, 2, and 3 of this Article, upon request from the competent state management agency for compensation work, the compensation responsible agency must promptly report on the examination of liability for repayment to serve state management activities related to compensation work.

Article 14. Implementation of Supervision over Activities Examining Liability for Repayment

1. The Ministry of Justice supervises activities examining liability for repayment in administrative management and enforcement of judgments nationwide.

2. The Supreme People's Court and the Supreme People's Procuracy supervise activities examining liability for repayment within their respective sectors.

3. Legal Affairs Organizations (for Ministries), the National Compensation Agency, and the Civil Enforcement General Department (for the Ministry of Justice) advise and assist their respective Ministries in supervising activities examining liability for repayment within their respective areas of management.

4. Departments of Justice advise and assist provincial-level People's Committees in supervising activities examining liability for repayment in administrative management within their respective localities.

5. Judicial Offices advise and assist district-level People's Committees in supervising activities examining liability for repayment in administrative management within their respective localities.

Article 15. Urging the Implementation of Activities Examining Liability for Repayment

1. Ministries and agencies equivalent to Ministries urge activities examining liability for repayment within their respective areas of management.

Legal Affairs Organizations (for Ministries), the National Compensation Agency, and the Civil Enforcement General Department (for the Ministry of Justice) advise and assist their respective Ministries in implementing the tasks prescribed in this clause.

2. The Supreme People's Court and the Supreme People's Procuracy urge activities examining liability for repayment within their respective areas of management.

3. Provincial-level People's Committees urge activities examining liability for repayment in administrative management within their respective areas of management for the following agencies:

4. Justice offices advise and assist District-level People's Committees in implementing the urging of the resolution of compensation in administrative management activities within their respective District-level People's Committees' jurisdiction.

5. In cases where responsible agencies do not perform tasks as prescribed in Articles 1, 2, 3, and 4 of this Article or have performed but the urged agencies have not complied, the Ministry of Justice shall be responsible for:

Departments of Justice advise and assist provincial-level People's Committees in implementing the tasks prescribed in this clause.

4. District-level People's Committees implement urging activities examining liability for repayment in administrative management within the responsibility of commune-level People's Committees.

Judicial Offices advise and assist district-level People's Committees in implementing the tasks prescribed in this clause.

Chapter III

LIABILITY FOR REPAYMENT OF PUBLIC SERVANTS IN CERTAIN SPECIFIC CASES

Article 16. Liability for repayment in cases where the liable party has retired

1. In cases where the liable party is a retired civil servant or public official, the examination of their liability for repayment shall be carried out in accordance with the provisions from Article 6 to Article 11 of this Joint Circular.

2. In cases where the liable party has been notified three times by the compensation responsible agency about the repayment but intentionally fails to fulfill the repayment obligation, the compensation responsible agency shall cooperate with the social insurance agency paying the retirement pension to the liable party to recover the repayment amount by gradually deducting it from the monthly pension at a rate of ten (10) to thirty (30) percent of the monthly pension of the liable party.

Article 17. Liability for repayment in cases where the liable party has transferred to another state agency

1. In cases where the liable party has transferred to another state agency, the examination of their liability for repayment shall be carried out in accordance with the provisions from Article 6 to Article 11 of this Joint Circular.

2. In cases where the liable party has been notified three times by the compensation responsible agency about the repayment but intentionally fails to fulfill the repayment obligation, the compensation responsible agency shall cooperate with the state agency managing the liable party to recover the repayment amount by gradually deducting it from the monthly salary at a rate of ten (10) to thirty (30) percent of the monthly salary of the liable party.

Article 18. Liability for repayment in cases where the liable party is no longer working in state agencies

In cases where the liable party is no longer working in state agencies, the examination of their liability for repayment shall be carried out as follows:

1. In cases where the liable party is working at a business enterprise or other organization

a) The examination of the liable party's liability for repayment who is working at a business enterprise or other organization shall be carried out in accordance with the provisions from Article 6 to Article 11 of this Joint Circular;

b) Immediately upon issuing the Repayment Decision, the agency issuing the Repayment Decision shall be responsible for sending the Decision to the liable party. The liable party shall be responsible for fulfilling the repayment obligation according to the amount and method determined in the Repayment Decision when the Repayment Decision has taken legal effect in accordance with Clause 1 of Article 61 of the Law on State Financial Management and Budget;

c) In cases where the liable party has been notified three times by the compensation responsible agency about the repayment but intentionally fails to fulfill the repayment obligation, the compensation responsible agency shall cooperate with the business enterprise or organization where the liable party is working to recover the repayment amount by gradually deducting it from the monthly salary at a rate of ten (10) to thirty (30) percent of the monthly salary of the liable party.

2. In cases where the liable party is not working for any organization or business enterprise

a) The examination of the liable party's liability for repayment in such cases shall be carried out in accordance with the provisions from Article 6 to Article 10 of this Joint Circular;

b) Immediately upon issuing the Repayment Decision, the agency issuing the Repayment Decision shall be responsible for sending the Decision to the public official who is liable for repayment. The liable party shall be responsible for fulfilling the repayment obligation according to the amount and method determined in the Repayment Decision when the Repayment Decision has taken legal effect in accordance with Clause 1 of Article 61 of the Law on State Financial Management and Budget.

Article 19. Liability for repayment in cases where the person responsible for repayment dies

1. In cases where the Repayment Decision is issued before the death of the person responsible for repayment and such person has an inheritance and heirs, the heirs must fulfill the obligation to repay according to the provisions of the Inheritance Law.

If the person responsible for repayment dies without leaving an inheritance, the compensation liability agency shall be responsible for verifying, documenting, and obtaining confirmation from the local authority where such person resided while alive regarding the absence of an inheritance.

Immediately upon completion of the verification process, the compensation liability agency must issue a decision exempting the responsibility for repayment. Within three (03) working days from the date of issuing the exemption decision, the compensation liability agency must report in writing and attach the exemption decision to the immediate superior agency and the competent financial authority.

2. In cases where the person responsible for repayment dies before the compensation liability agency issues the Repayment Decision, the compensation liability agency will not consider the responsibility for repayment of such person.

Article 20. Right to initiate litigation against the person responsible for repayment to fulfill the obligation to repay

In cases where the compensation liability agency has taken necessary measures as prescribed by law but still fails to recover the repayment amount from the person responsible for repayment, the compensation liability agency has the right to initiate litigation against such person to request fulfillment of the obligation to repay according to the Civil Procedure Law at the Court.

Chapter IV

IMPLEMENTING PROVISIONS

Article 21. Effectiveness

This Circular takes effect from March 8, 2014

Article 22. Interpretation and supplementary guidance on this Joint Circular

During implementation, if there are difficulties or unresolved issues requiring further explanation or supplementary guidance, it is recommended that agencies, organizations, and individuals reflect these issues to the Ministry of Justice, the Supreme People's Court, and the Supreme People's Procuracy for timely clarification or supplementary guidance./.