Joint Circular No. 17/2015/TTLT-BTP-BQP guiding the implementation of the State's liability for compensation in civil enforcement activities

JOINT CIRCULAR

Guidelines for Implementing State Compensation Liability in Civil Enforcement Activities

____________________________

Pursuant to the Law on State Compensation Liability No. 35/2009/QH12 dated June 18, 2009;

Pursuant to the Civil Enforcement Act No. 26/2008/QH12 dated November 14, 2008, amended and supplemented by some articles pursuant to Law No. 64/2014/QH13 dated November 25, 2014;

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;

Pursuant to Decree No. 22/2013/NĐ-CP dated March 13, 2013, of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Justice;

Pursuant to Decree No. 35/2013/NĐ-CP dated April 22, 2013, of the Government, stipulating the functions, tasks, powers, and organizational structure of the Ministry of National Defense;

The Minister of Justice and the Minister of National Defense jointly issue Circular guiding the implementation of state compensation liability in civil enforcement activities.

PART I

DETERMINATION OF STATE COMPENSATION LIABILITY

IN CIVIL ENFORCEMENT ACTIVITIES

Article 1. Time Point for Determining the Right to Request Compensation

The person suffering damage has the right to request the responsible compensation agency to handle the compensation from the day the competent state authority issues a document determining that the act of the enforcement officer is contrary to the law.

Article 2. Period Not Counted in the Statute of Limitations for Requesting Compensation

The time periods not counted towards the limitation period for requesting compensation as stipulated in Clause 1, Article 5 of the Law on State Compensation Liability (hereinafter referred to as the Law) include the following situations:

1. Events of force majeure or objective obstacles as provided for in the Civil Code which prevent the person suffering damage from requesting compensation within the statute of limitations;

2. The person suffering damage is a minor, a person without civil capacity, or a person with limited civil capacity who does not have a representative as prescribed by law;

3. The person suffering damage is a minor, a person without capacity for civil acts or with limited capacity for civil acts who already has a representative but the representative has died or according to the law cannot continue to represent the person suffering damage.

Article 3. Documents of Competent State Authorities Determining Acts of Public Servants Contrary to the Law

Documents of competent state authorities determining acts of public servants contrary to the law are the following effective legal documents:

1. Decisions to revoke, amend, supplement, or cancel decisions regarding civil enforcement that are contrary to the law;

2. Decisions to resolve complaints made by persons with authority under the Civil Enforcement Act of 2008, as amended in 2014 (hereinafter referred to as the Civil Enforcement Act);

3. Conclusions on the substance of accusations made by persons with authority under the Civil Enforcement Act;

4. Conclusions of inspections resolving complaint and accusation cases made by competent state authorities under the law on inspections;

5. Documents issued by the head of the civil enforcement agency with authority accepting the protest of the People's Procuracy with authority which has filed a protest according to the Civil Enforcement Act;

6. Judgments and decisions of courts with authority that have become legally binding.

Article 4. Basis for Determining State Compensation Liability

1. State compensation liability in cases where enforcement officers issue decisions or organize the execution of decisions regarding civil enforcement as provided in Article 38 of the Law shall arise only when the following conditions are met:

a) There is a document from a competent state authority determining that the act of the public servant is contrary to the law;

b) The harmful act of the enforcement officer falls within the scope of compensation liability as prescribed in Article 38 of the Law;

c) Actual damage has occurred;

d) There is a causal relationship between the actual damage and the unlawful act of the public servant.

2. State compensation liability in cases where enforcement officers do not issue decisions or do not organize the execution of decisions regarding civil enforcement as provided in Article 38 of the Law shall arise only when the following conditions are met:

a) The conditions set forth in Clause 1 of this Article;

b) There is intentional fault of the enforcement officer.

3. State compensation liability in cases where the person suffering damage also bears some fault in causing the damage shall be determined as follows:

a) The State will not compensate for damage entirely caused by the fault of the person suffering damage;

b) In cases where the person suffering damage also bears part of the fault in causing the damage, the State will only compensate for the damage after deducting the corresponding portion caused by the fault of the person suffering damage. The determination of compensable damage after deducting the damage caused by the fault of the person suffering damage shall be carried out in accordance with the Civil Code and implementing regulations.

Article 5. Determination of Intentional Fault of Enforcement Officers

The determination of intentional fault of enforcement officers in cases where enforcement officers intentionally fail to issue decisions on civil enforcement or intentionally fail to organize the execution of such decisions as provided in Article 38 of the Law shall be determined as follows:

1. Where documents of competent authorities as stipulated in Article 3 of this Joint Circular determine the intentional fault of enforcement officers, the compensation-responsible agency shall base its decision on those documents to handle compensation for the person suffering damage;

2. Where documents as stipulated in Article 3 of this Joint Circular do not determine the intentional fault of enforcement officers, the compensation-responsible agency shall determine the intentional fault based on those documents or other materials and evidence provided by the parties, applying provisions of the Civil Code.

Article 6. Determining the Scope of State Compensation Liability

1. Cases falling within the scope of state compensation liability in civil enforcement activities as provided in Article 38 of the Law include:

a) Heads of civil enforcement agencies issuing decisions on civil enforcement, decisions to revoke, amend, supplement, or cancel decisions on civil enforcement, decisions on civil enforcement to enforce court orders for provisional measures, decisions to suspend enforcement, decisions to temporarily halt enforcement, decisions to terminate enforcement, decisions to resume enforcement contrary to the law;

b) Heads of civil enforcement agencies intentionally failing to issue decisions on civil enforcement as stipulated in Clause 1 and Clause 2, Article 36 of the Civil Enforcement Act; decisions to revoke, amend, supplement, or cancel decisions on civil enforcement; decisions on civil enforcement to enforce court orders for provisional measures within the time limit prescribed by law; failing to proactively issue decisions to suspend enforcement when enforcement falls under one of the circumstances specified in Clause 1, Article 48 of the Civil Enforcement Act or intentionally failing to issue decisions to suspend enforcement upon receiving requests from authorized bodies to protest judgments or decisions through cassation or re-trial procedures as stipulated in Clause 2, Article 48 of the Civil Enforcement Act; decisions to temporarily halt enforcement as stipulated in Clause 2, Article 49 of the Civil Enforcement Act; decisions to terminate enforcement when enforcement falls under the circumstances specified in Clause 1, Article 50 of the Civil Enforcement Act; decisions to resume enforcement when the grounds or time limits for suspending enforcement as stipulated in Clause 1 and Clause 2, Article 48 of the Civil Enforcement Act no longer exist or upon receiving one of the decisions specified in Clause 3, Article 49 of the Civil Enforcement Act;

c) Heads of civil enforcement agencies engaging in unlawful conduct during the organization of enforcement of decisions on civil enforcement; intentionally failing to organize the execution of such decisions as required by law;

d) Enforcement officers issuing decisions on security measures for enforcement without legal basis; issuing decisions on compulsory enforcement contrary to the law;

d) An enforcement officer intentionally fails to issue a decision to apply a guarantee measure for execution when there is a basis to apply a guarantee measure in cases where they themselves apply the guarantee measure for execution; issues a decision to apply a guarantee measure for execution in cases where applying a guarantee measure for execution is requested by the parties; issues a compulsory execution decision when there is a basis to apply a compulsory execution measure according to the provisions of the law;

e) An enforcement officer and other public servants commit acts contrary to the law during the organization of execution of decisions on execution; intentionally fail to organize the execution of decisions on execution according to the provisions of the law.

2. The following cases are not within the scope of state compensation liability in civil enforcement activities as stipulated in Article 38 of the Law:

a) In cases where the head of the civil enforcement agency issues an execution decision to enforce a court decision on provisional measures correctly according to that decision causing damage; decides to suspend the execution of the decision according to point c, Clause 1, Article 48 of the Civil Enforcement Law or at the request of the authorized authority for protest according to Clause 2, Article 48 of the Civil Enforcement Law; decides to temporarily suspend the execution of the decision upon receiving a notice from the Court regarding the acceptance of a bankruptcy petition against the person subject to execution according to Clause 2, Article 49 of the Civil Enforcement Law causing damage; decides to terminate the execution of the decision when the judgment or decision of the Court is partially or wholly annulled according to point d, Clause 1, Article 50 of the Civil Enforcement Law;

b) In cases where the enforcement officer issues a decision to apply a guarantee measure for execution correctly according to the request of the parties causing damage.

Article 7. Agencies responsible for compensation

1. In cases where the civil enforcement agency entrusts another organization or individual with tasks related to civil enforcement activities causing damage within the scope of compensation liability as prescribed by the Law, that civil enforcement agency shall be responsible for compensation.

2. In cases where damage occurs due to the organization conducting a public auction of enforcement assets, the agency responsible for compensation shall be determined as follows:

a) In cases where both the civil enforcement agency and the auction organization cause damage to the damaged party during the auction of seized assets, they must jointly compensate. The civil enforcement agency has the responsibility to compensate for all subsequent damage and then demand the auction organization to fulfill its joint liability obligations according to the provisions of the Civil Code;

b) In cases where damage occurs due to illegal actions of the civil enforcement agency in signing contracts for asset valuation services; selling assets through public auctions; delegating the sale of assets through public auctions, the civil enforcement agency is the agency responsible for compensation;

c) In cases where damage occurs due to illegal actions of the auction organization during the organization of the public auction of enforcement assets, the auction organization is responsible for compensation according to civil law regulations;

3. In cases where the damaged party cannot identify the agency responsible for compensation or there is no agreement on the agency responsible for compensation, the determination of the agency responsible for compensation shall be carried out according to the provisions of point a, Clause 1, Article 23 of Decree No. 16/2010/ND-CP dated March 3, 2010 of the Government detailing and guiding the implementation of certain provisions of the Law (Decree No. 16/2010/ND-CP);

Chapter II

DAMAGE TO BE COMPENSATED

Article 8. Actual Damage

1. Actual damage is real damage suffered by the damaged party due to illegal actions of public servants as provided for in Articles 45 to 49 of the Law and relevant laws.

2. Actual damage as stipulated in Clause 1 of this Article includes expenses incurred by the damaged party during the process of lodging complaints, making accusations, participating in litigation to obtain documents identifying the illegal actions of public servants such as: travel expenses, transportation costs, accommodation costs, printing costs for documents, sending letters during the complaint and accusation process, and participation in litigation.

Travel expenses, transportation costs, accommodation costs, and printing costs are applied according to the regulations of the Ministry of Finance on travel expense allowances and expenditure regulations for organizing meetings for state agencies and public service units.

3. The time for resolving compensation as stipulated in Clause 1 of Article 45 of the Law is the time when the damaged party signs the final negotiation record during the negotiation to resolve compensation. In cases where the damaged party does not sign the negotiation record, the time for resolving compensation is calculated from the time when other negotiating parties sign the record as stipulated in Clause 2 of Article 15 of this Circular.

Article 9. Damage caused by infringement of property

1. Damage caused by infringement of property shall be determined according to Article 45 of the Law. In cases where the infringed property is land use rights, houses, construction works, and other assets attached to land, the compensation amount shall be determined according to the provisions of Article 45 of the Law and relevant laws.

The time point for determining the current status of the property as the basis for calculating the compensation amount is the time when the damage occurred.

2. The interest calculation period for the amounts of money specified in Clause 4 of Article 45 of the Law shall be calculated from the date such money is deposited into the state budget; confiscated; enforced until the date the decision on damage compensation is issued by the responsible compensation agency or until the date the court's judgment or decision becomes legally effective.

3. The amounts of money that must be deposited into the state budget as decided by the competent state authority under Clause 4 of Article 45 of the Law include the amounts of money that the damaged party has already deposited into the state budget or the amounts of money that will have to be deposited into the state budget.

Article 10. Damage caused by actual loss or reduction of income

1. Damage due to actual loss or reduction of income of organizations

Damage caused by actual loss or reduction of income of organizations as stipulated in Article 46 of the Law shall be determined based on the average income of two consecutive years prior to the occurrence of the damage. The income of the organization shall be determined according to the organization’s legitimate financial reports; in case there is no financial report, the organization may prove the actual loss or reduction of income with other legitimate documents and evidence according to relevant laws.

In cases where the organization was established less than two years before the occurrence of the damage, the actual income of the organization shall be determined based on the average income during the actual operating time of the organization.

2. Damage due to actual loss or reduction of income of individuals

In cases where the damaged party had stable income from salary within the establishment or wages from labor contracts before the occurrence of the damage, the actual income shall be determined based on the salary or wage level of the month immediately preceding the occurrence of the damage.

In cases where the damaged party had employment and monthly income but not stable before the occurrence of the damage, the average income of the three months immediately preceding the occurrence of the damage shall serve as the basis for determining the actual income.

In cases where the damaged party was farmers, fishermen, salt workers, forest growers, hired workers, small traders, artisans, or other workers with seasonal or unstable income before the occurrence of the damage, the average income of similar workers in the locality shall be taken as the basis for determining the actual income; if the average income cannot be determined, the basic wage set by the State for civil servants working in administrative state agencies at the time of compensation shall be used as the basis for determining the actual income.

In cases where the damaged party was on unpaid leave and other benefits as prescribed by law before the occurrence of the damage, the damaged party shall not be compensated for the actual loss or reduction of income related to salary and those benefits.

Chapter III

PROCEDURES FOR SETTLING COMPENSATION AT THE RESPONSIBLE COMPENSATION AUTHORITY

Article 11. Claiming Compensation Application and Submission

1. The victim may submit a claiming compensation application to the responsible compensation authority through one of the following methods:

a) Directly submitting the application at the responsible compensation authority;

b) Sending the application to the responsible compensation authority via postal service.

2. The victim must submit one set of the claiming compensation application which includes:

a) Claim application form according to Model 01a and 01b issued together with this Circular;

b) Official document from a competent state agency identifying the illegal act of the public servant;

c) Legal power of attorney for claim application, in case the claimant is the authorized representative of the victim;

d) Supporting documents and evidence (if any).

In cases where the damaged party directly submits the claim for compensation to the responsible compensation agency, they shall submit a photocopied copy of the document from the competent state authority identifying the illegal act of the public servant and a photocopied copy of the power of attorney, while carrying the original for verification.

In cases where the damaged party sends the claim for compensation to the responsible compensation agency through postal service, they shall send an authenticated copy of the document from the competent state authority identifying the illegal act of the public servant and an authenticated copy of the power of attorney.

3. In cases where the damaged party dies and the heir of the damaged party submits a claim for compensation, in addition to the documents specified in points a and b of Clause 2 of this Article, the claim for compensation file shall also include the following documents:

a) Will of the victim or another lawful document proving the right of inheritance of the claimant;

b) A legitimate power of attorney document appointing one of the heirs or another person who is not an heir to represent the heirs of the damaged party in exercising the right to claim compensation, in cases where the damaged party has multiple heirs;

c) Identity card and other documents proving their relationship with the damaged party such as household registration, marriage certificate, birth certificate of the person claiming compensation... or confirmation from the local government where the damaged party resided or confirmation from the agency or organization where the damaged party worked confirming that the damaged party is a relative of the person claiming compensation.

In cases where the damaged party directly submits the claim for compensation to the responsible compensation agency, they shall submit photocopied copies of the documents specified in points a, b, and c of this clause, while carrying the originals for verification.

In cases where the damaged party sends the claim for compensation to the responsible compensation agency through postal service, they shall send authenticated copies of the documents specified in points a, b, and c of this clause.

Article 12. Acceptance of Compensation Claim Petitions

1. Upon receiving the compensation claim file, the responsible compensation agency must check and determine the validity of the petition and accompanying documents; if the file is incomplete, the agency shall guide the claimant to supplement it.

For official documents issued by state agencies that identify the illegal acts of public servants which the claimant is unable to provide, if the victim requests, the responsible compensation agency shall be responsible for collecting such documents.

2. Within five working days from the date of receipt of the valid petition and documents, if the agency determines that the compensation claim falls within its responsibility, it must accept the case and notify the claimant in writing about the acceptance; if the agency considers the matter not within its responsibility, it must return the file and guide the claimant to submit the petition to the competent state management agency for compensation to determine the responsible compensation agency according to Chapter IV of Decree No. 16/2010/NĐ-CP.

3. After the compensation claim petition is accepted, the victim must provide evidence to support their claim from the date of acceptance until the damage verification is completed.

Article 13. Appointment of Representative to Handle Compensation Matters

1. Within two working days from the date of accepting the compensation claim petition, the head of the responsible compensation agency must issue a decision appointing a representative to handle the compensation matter (hereinafter referred to as the representative) in accordance with Article 7 of Decree No. 16/2010/NĐ-CP. The appointment decision must be immediately sent to the claimant.

2. The superior civil enforcement agency of the civil enforcement agency responsible for compensation shall appoint a representative to handle the compensation matter in the following cases:

a) The civil enforcement agency has only one leader who is also the person causing the damage;

b) The civil enforcement agency has only one leader who is also related to the victim or the person causing the damage as stipulated in Clause 1 of Article 7 of Decree No. 16/2010/NĐ-CP;

c) The leader of the civil enforcement agency is the person causing the damage and the remaining leader of that civil enforcement agency does not have the authority and conditions to appoint a representative.

3. In the case where the responsible compensation agency is a Civil Enforcement Office without a staff member meeting the conditions specified in Clause 2 of Article 7 of Decree No. 16/2010/NĐ-CP, the Enforcement Officer of the Civil Enforcement Office may be appointed as the representative to handle the compensation matter.

4. If the Civil Enforcement Office does not have a staff member meeting the conditions specified in this Clause 3, the Civil Enforcement Department shall appoint an Enforcement Officer of the Department as the representative to handle the compensation matter.

Article 14. Damage Verification

1. In the case of individuals whose income is salary, the agency responsible for compensation must verify the damage based on the pay slip.

2. In the case of organizations with income, the determination and collection of the organization's income is based on the organization's legitimate financial report.

3. For damage involving rental housing costs, the damage verification must be based on the following documents:

a) Registration documents for temporary residence or confirmation from the police station, ward, town regarding temporary residence at the rented location;

b) Rental agreement established in a form consistent with the legal provisions on leasing property or confirmed by the owner of the house regarding the rental.

4. In the case where the damage includes printing costs for documents and sending letters during the complaint, accusation, and participation in litigation processes to obtain a document identifying illegal acts, the damage verification must be based on invoices and receipts for printing documents or postal receipts.

5. In the event that the victim provides evidence to support their claim after the compensation claim petition is accepted, the victim has no right to claim interest arising from the actual compensation amount and other damages incurred during the period of providing such evidence.

If the claimant cannot collect the evidence themselves, they may request the responsible compensation agency to collect the evidence to ensure lawful compensation resolution.

Article 15. Negotiation on Compensation

1. The negotiation to determine the compensable damage and compensation amount shall be conducted based on the documents and evidence provided by the person suffering damage and the documents and evidence collected during the process of verifying the damage by the responsible compensation agency.

2. In cases where the negotiation period has expired and the person suffering damage does not sign the negotiation record, the responsible compensation agency must prepare a record signed by the other participants in the negotiation regarding the person's intentional refusal to sign the document. This record serves as the basis for the responsible compensation agency to issue a decision on compensation resolution.

3. The negotiation record shall be conducted according to Model No. 02 issued together with this Circular.

Article 16. Issuance of Decision on Compensation Resolution

Within three working days from the end of the negotiation, the representative must complete the draft decision on compensation resolution to report to the head of the responsible compensation agency.

Based on the results of damage verification, negotiations with the person suffering damage, and opinions of related agencies (if any), the head of the responsible compensation agency issues the decision on compensation resolution.

Where the superior civil enforcement agency of the responsible civil enforcement agency assigns a representative to implement the compensation resolution as stipulated in Clause 2 and Clause 4 of Article 13 of this Joint Circular, the representative in charge of the compensation resolution shall issue the decision on compensation resolution. The decision on compensation resolution shall be made according to Model No. 03 issued together with this Joint Circular.

Article 17. Deadline for Issuing Decision on Compensation Resolution

The deadline for issuing the decision on compensation resolution as prescribed in Article 22 of the Law is determined as the eleventh day, counting from the date when the representative implements the compensation resolution and the person suffering damage signs the negotiation record, or from the date of preparing the record regarding the person’s intentional refusal to sign the negotiation record.

Article 18. Payment of Compensation

1. Within five working days from the date the judgment or decision on compensation resolution becomes legally effective, the responsible compensation agency must immediately transfer the compensation claim file to the central state management agency for civil enforcement proceedings to carry out the procedures for review, request for allocation, and payment of compensation to the person suffering damage, specifically as follows:

a) In the case where the responsible compensation agency is a civil enforcement agency under the Ministry of Justice, the compensation claim file shall be transferred to the Civil Enforcement General Department of the Ministry of Justice;

b) In the case where the responsible compensation agency is a civil enforcement agency under the Ministry of National Defense, the compensation claim file shall be transferred to the Civil Enforcement Bureau of the Ministry of National Defense.

2. The procedures for allocating and paying compensation to the person suffering damage shall be carried out in accordance with the provisions of Chapter VI of the Law and relevant laws.

Chapter IV

IMPLEMENTING PROVISIONS

Article 19. Effectiveness

1. This Joint Circular takes effect from January 21, 2016.

2. This Joint Circular replaces Joint Circular No. 24/2011/TTLT-BTP-BQP dated December 15, 2011, of the Ministry of Justice and the Ministry of National Defense guiding the implementation of the State's responsibility for compensation in civil enforcement activities.

Article 20. Transitional Provisions

1. In cases where the person suffering damage has requested compensation before the effective date of this Joint Circular and their compensation request has been accepted for handling, the responsible compensation agency shall continue to apply Joint Circular No. 24/2011/TTLT-BTP-BQP dated December 15, 2011, of the Ministry of Justice and the Ministry of National Defense guiding the implementation of the State's responsibility for compensation in civil enforcement activities to resolve the compensation.

2. In cases where the person suffering damage has requested compensation before the effective date of this Joint Circular but their compensation request has not yet been accepted for handling, the responsible compensation agency shall apply this Joint Circular to resolve the compensation.

Article 21. Responsibility for Implementation and Organization of Execution

1. The Ministry of Justice, the Ministry of National Defense, agencies responsible for compensation settlement, related organizations shall be responsible for implementing this Joint Circular.

2. During the implementation process, if there are difficulties, obstacles, or new issues arise, agencies, organizations, units, and individuals are requested to promptly report to the Ministry of Justice and the Ministry of National Defense for consideration and resolution within their authority./.