Joint Circular No. 18/2015/TTLT-BTP-BTC-TTCP guides the implementation of the State's liability for compensation in administrative management activities.

JOINT CIRCULAR

Guidelines for Implementing State Compensation Liability

in Administrative Management Activities

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Pursuant to the Law on State Compensation Liability No. 35/2009/QH12 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;

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. 215/2013/NĐ-CP dated December 23, 2013, promulgated by the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

Based on Decree No. 83/2012/NĐ-CP dated October 9, 2012, of the Government stipulating the functions, tasks, powers, and organizational structure of the Government Inspectorate;

The Minister of Justice, the Minister of Finance, and the Chairman of the Government Inspectorate jointly issue this Circular to guide the implementation of state compensation liability in administrative management activities.

PART I

DETERMINATION OF STATE COMPENSATION LIABILITY

IN ADMINISTRATIVE MANAGEMENT ACTIVITIES

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

The person suffering damage has the right to request the competent authority responsible for compensation to resolve the compensation matter from the date the competent state authority issues a document determining that the act of the public servant is contrary to the law.

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

The periods not counted in the statute of limitations 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 events:

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 civil capacity, or a person with limited civil capacity who has a representative but the representative has died or, according to the law, cannot continue to be the representative of 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 revoking, canceling, replacing, or amending administrative decisions due to such decisions being issued contrary to the law;

2. Decisions resolving complaints made by persons authorized under the law on complaints;

3. Conclusions on the substance of accusations made by persons authorized under the law on accusations;

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

5. Judgments and decisions of the Court on administrative cases that have become legally binding;

6. Judgments and decisions of the Court on civil cases that have become legally binding declaring the annulment of administrative decisions;

7. Judgments and decisions of the Court on criminal cases determining that public servants committed crimes while performing their duties, but such judgments and decisions do not determine the liability for compensation for damages caused by such crimes.

Article 4. Basis for Determining State Compensation Liability in Administrative Management Activities

1. State compensation liability in administrative management activities only arises 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 unlawful act of the public servant falls within the scope of compensation liability as stipulated in Article 13 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 the person suffering damage is at fault in causing the damage is 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 has some fault in causing the damage, the State will only compensate for the portion of the damage after deducting the corresponding portion of the damage caused by the fault of the person suffering damage. The determination of the 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 the guiding documents.

Article 5. Determination of the Scope of Compensation Liability

1. The determination of the scope of compensation liability in specific cases is carried out as follows:

a) Applying the measures provided for in Clauses 2, 3, and 4 of Article 13 of the Law involves the public servant having an unlawful act and causing damage when issuing decisions to apply administrative violation handling measures and implementing those measures;

b) The State is liable to compensate for damage caused to the person suffering damage in cases where the person suffering damage is a civil servant holding a position from Deputy Director-General or equivalent and below who is disciplined with dismissal;

c) Other cases eligible for compensation as provided for in Clause 12 of Article 13 of the Law are other cases eligible for compensation as prescribed in legal normative documents and such documents are effective after January 1, 2010.

2. Documents having the value of permits as provided for in Clauses 5 and 11 of Article 13 of the Law include: confirmation, approval, and approval documents; practice certificates; certificates of recognition; and other types of documents issued by competent state authorities to organizations and individuals to enable them to exercise their rights and fulfill their obligations as prescribed by law.

Article 6. Authorities responsible for compensation

1. In cases where damage caused by public officials is inflicted upon persons managed by agencies with legal personality under the management of specialized agencies of the People's Committee at provincial level as prescribed in Clause 4, Article 3 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), the authority directly managing such public officials shall be the authority responsible for compensation.

2. The authority responsible for compensation in cases where administrative measures involving placement in educational centers, compulsory education facilities, or medical treatment facilities are applied contrary to the provisions of the law shall be determined according to the provisions of the Law on State Compensation Liability 2009 and the Law on Handling Administrative Violations 2012.

Chapter II

DAMAGE TO BE COMPENSATED

Article 7. Actual Damage

1. Actual damage is real damage that the victim must bear due to unlawful acts of public officials as stipulated from Article 45 to Article 49 of the Law and related laws.

2. Actual damage as prescribed in Clause 1 of this Article includes actual expenses incurred by the victim during complaints, denunciations, participation in litigation to obtain documents confirming the unlawful acts of public officials, such as transportation costs, travel expenses, accommodation fees, printing costs of documents, sending letters during the complaint and denunciation process.

Transportation costs, travel expenses, accommodation fees, and printing costs shall be applied according to the regulations of the Ministry of Finance regarding travel expense allowances and expenditure regulations for organizing meetings for state agencies and public service units.

3. The time for resolving compensation as prescribed in Clause 1 of Article 45 of the Law is the date when the victim signs the final negotiation record in the negotiation for resolving compensation. If the victim does not sign the negotiation record, the time for resolving compensation shall be calculated from the date when other negotiating parties sign the record as prescribed in Clause 2 of Article 16 of this Circular.

Article 8. Damage caused by infringement of property

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

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. Interest calculation period for amounts specified in Clause 4 of Article 45 of the Law starts from the date the money was deposited into the state budget; confiscated; enforced until the date the decision on compensation resolution is issued by the authority responsible for compensation or until the date the court's judgment or decision becomes legally effective.

3. Amounts required to be deposited into the state budget according to the decision of competent state authorities as prescribed in Clause 4 of Article 45 of the Law include amounts already deposited into the state budget by the victim or amounts that will need to be deposited into the state budget.

Article 9. Damage due to actual loss or reduction of income

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

The damage due to 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 immediately preceding the time when the damage occurred. The income of the organization shall be determined according to the organization's legally valid financial reports; in cases where there are no financial reports, the organization may prove the actual loss or reduction of income through other legally valid documents and evidence as prescribed by relevant laws.

In cases where the organization has been established for less than two years up to the time when the damage occurred, the actual income of the organization shall be determined based on the average income during the actual period of operation of that organization.

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

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

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

In cases where the person suffering damage was a farmer, fisherman, salt worker, forest grower, hired worker, small trader, artisan, or other workers with income but seasonal or unstable before the occurrence of damage, the average income of similar workers in the locality shall be taken as the basis for determining the amount of 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 applied.

In cases where the person suffering damage was on leave without pay and other benefits as prescribed by law before the occurrence of damage, the person suffering damage shall not be compensated for damage due to actual loss or reduction of income related to salary and those benefits.

Article 10. Damage due to mental distress

1. Damage due to mental distress during administrative detention, placement in a reformatory school, educational facility, or medical facility as stipulated in Clause 1 of Article 47 of the Law shall be determined as follows:

a) One day's basic wage shall be determined by dividing the basic wage level set by the State for civil servants working in administrative state agencies at the time of compensation by 22, which is the average number of working days in each month.

Example: At the time this Circular is issued, the general basic wage level set by the State is 1,150,000 VND, so one day's basic wage will be: 1,150,000 VND ÷ 22 = 52,273 VND.

b) The number of days of administrative detention, placement in a reformatory school, educational facility, or medical facility shall be determined based on the actual number of days the person being compensated was detained administratively, placed in a reformatory school, educational facility, or medical facility.

Example: Mr. A was admitted to a medical facility on December 1, 2010, and was released on March 1, 2011. On March 20, 2011, the competent authority determined that Mr. A did not fall under the category of persons subject to placement in a medical facility. In this case, the damage due to mental distress that Mr. A is entitled to be compensated for is determined as follows:

The actual number of days of admission to the medical facility is: 31 days of December 2010 + 31 days of January 2011 + 28 days of February 2011 = 90 days.

The number of days' wages calculated based on the basic wage level for compensation is:

90 days × 2 = 180 days.

In this example, the amount of compensation that Mr. A receives from the State is:

180 days × 52,273 VND = 9,409,140 VND.

2. Damage due to mental distress in cases where the person suffering damage dies as stipulated in Clause 3 of Article 47 of the Law shall be determined as follows:

a) If the person suffering damage died during administrative detention, placement in a reformatory school, educational facility, or medical facility without fault on their part or due to force majeure or emergency situation, their relatives shall be compensated for damage due to mental distress with a lump sum of three hundred sixty months' wages calculated based on the general basic wage level set by the State at the time of compensation.

b) If the person undergoing administrative detention, placement in a reformatory school, educational facility, or medical facility died during such detention or placement due to their own fault or due to force majeure or emergency situation, their relatives shall not be compensated for damage due to mental distress as prescribed in Clause 3 of Article 47 of the Law.

c) The compensation amount for damage due to mental distress is a lump sum compensation for the relatives of the person suffering damage (spouse, father, mother, adoptive father, adoptive mother, biological child, adopted child, or person directly raising the person suffering damage). Those who are entitled to compensation in this case must still be alive at the time of the person suffering damage's death.

Article 11. Material damage caused by the death of the victim

1. Reasonable expenses for medical treatment, maintenance, and care of the victim before their death as stipulated in Clause 1 of Article 48 of the Law shall be actual necessary expenses consistent with the nature and extent of the damage, commensurate with the average price at each locality at the time of expenditure, including: fees for transportation to take the victim to emergency medical facilities; drug costs and costs for purchasing medical equipment; costs for radiography, CT scans, ultrasound, laboratory tests, surgery, and blood transfusion as prescribed by doctors; hospitalization fees; nutritional supplements and health recovery maintenance costs for the victim as prescribed by doctors; other actual and necessary expenses before the victim's death (if any).

2. Funeral expenses for the deceased victim as stipulated in Clause 2 of Article 48 of the Law shall be determined according to the funeral allowance provided under social insurance laws. In cases where the victim's relatives must hire a vehicle to transport the body for burial, the cost of hiring the vehicle shall also be compensated.

3. Compensation for maintenance payments shall only be provided to those individuals for whom the victim was fulfilling maintenance obligations as stipulated in Clause 3 of Article 48 of the Law if the victim died while being administratively detained, placed in an educational facility, or a healthcare facility, despite having been fulfilling maintenance obligations prior to such detention or placement. Individuals receiving maintenance from the victim shall be compensated for that maintenance amount.

Article 12. Material damage caused by harm to health

1. Reasonable expenses for medical treatment, maintenance, rehabilitation, and restoration of lost or diminished functions of the victim as stipulated in Clause 1 of Article 49 of the Law include: expenses guided in Clause 1 of Article 11 of this Circular and expenses for artificial limb installation, prosthetic eye fitting, wheelchair purchase, walker purchase, cosmetic correction, and other expenses to support or replace lost or diminished bodily functions of the victim (if any).

If state agencies have paid all these expenses, the victim will not be entitled to compensation; in cases where state agencies have paid part of these expenses, the victim will be compensated for the remaining portion.

2. Compensation for reasonable expenses and actual income loss of caregivers for the victim as stipulated in Clause 3 of Article 49 of the Law.

a) The victim may only be compensated for reasonable expenses and actual income loss of caregivers if such care is necessary or required by a medical facility.

b) Reasonable expenses of caregivers during treatment include travel fares and accommodation rental fees as prescribed by the Ministry of Finance regarding travel allowances and meeting organization expenses for state agencies and public service units.

c) Actual income loss of caregivers during treatment is determined according to Article 46 of the Law and guided in Clause 2 of Article 9 of this Circular.

3. A person who has lost the ability to work and requires constant care is someone unable to engage in production, business, or service activities. Reasonable expenses for constant care of a person who has lost the ability to work as stipulated in Clause 4 of Article 49 of the Law shall be calculated based on the average wage paid for caring for disabled persons in the locality where the victim resides.

Chapter III

PROCEDURES FOR SETTLING COMPENSATION AT THE RESPONSIBLE COMPENSATION AUTHORITY

Article 13. 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 victim directly submits the application at the responsible compensation authority, they must send a copy of the official document from a competent state agency identifying the illegal act of the public servant and a copy of the power of attorney, while carrying the original for verification.

In cases where the victim sends the application to the responsible compensation authority via postal service, they must send an authenticated copy of the official document from a competent state agency identifying the illegal act of the public servant and an authenticated copy of the power of attorney.

3. In cases where the victim dies and the heir of the victim submits a claim application, in addition to the documents specified in point a and b of Clause 2 of this Article, the application must also include the following documents:

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

b) Legal authorization document appointing one of the heirs or another non-heir to represent the heirs of the victim in exercising the right to claim compensation, in cases where the victim has multiple heirs.

c) Identity card and other documents proving their relationship with the person suffering damage such as household registration book, marriage certificate, birth certificate of the person requesting compensation... or confirmation from the local authority where the person suffering damage resides or confirmation from the agency or organization where the person suffering damage works confirming that the person suffering damage is a relative of the person requesting compensation.

In the case where the person suffering direct damage submits the claim file to the agency responsible for compensation, they must submit photocopied copies of the documents specified in points a, b, and c of this clause while carrying the original documents for verification.

In the case where the person suffering damage sends the claim file to the agency responsible for compensation through postal service, they must send certified copies of the documents specified in points a, b, and c of this clause.

Article 14. Acceptance of Claim for Compensation

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

For official documents issued by state agencies with authority determining the illegal acts of public officials which the person requesting compensation is unable to provide, if the person suffering damage requests, the agency responsible for compensation has the responsibility to collect those documents.

2. Within five working days from the date of receipt of the valid claim and documents, if the claim is determined to fall within its responsibility, the agency receiving the file must accept the claim and notify the person requesting compensation in writing about the acceptance; if the agency receiving the claim considers the matter not within its responsibility, it must return the file and guide the person requesting compensation to submit the claim to the state management agency on compensation to determine the responsible agency according to Chapter IV of Decree No. 16/2010/NĐ-CP.

3. After the claim for compensation is accepted, the person suffering damage must provide evidence and documents to prove the claim from the date of acceptance until the end of the damage verification process.

Article 15. 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 of damage involving printing costs for documents, sending letters during the complaint, accusation, participation in litigation to obtain a document identifying illegal acts, the damage verification must be based on invoices, receipts for printing documents or postal receipts.

5. In the case where the person suffering damage provides evidence and documents to prove the claim for compensation only after the claim has been accepted, the person suffering damage does not have the right to request compensation for interest arising from the actual compensation amount and other damages arising during the period of providing these documents and evidence.

If the person requesting compensation cannot collect the evidence themselves, they may make a written request for the agency responsible for compensation to collect evidence to ensure the lawful resolution of compensation.

Article 16. Negotiation on Compensation

1. The negotiation to determine the damage to be compensated and the compensation amount shall be carried out 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 case the negotiation period expires and the person suffering damage does not sign the negotiation record, the responsible compensation agency must establish a record with the signatures of other participants in the negotiation regarding the person suffering damage'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 17. Issuance of Decision on Compensation Resolution

Within three working days from the date of completion 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.

Article 18. Deadline for Issuing Decision on Compensation Resolution

The deadline for issuing the decision on compensation resolution as stipulated in Article 20 of the Law is determined as the eleventh day, counting from the date when the representative conducts the compensation resolution and the person suffering damage signs the negotiation record, or from the date of establishing the record regarding the person suffering damage's intentional refusal to sign the negotiation record.

Article 19. Payment of Compensation

Based on the effective decision on compensation resolution of the responsible compensation agency or the effective judgment or decision of the Court, the responsible compensation agency implements the payment of compensation to the person suffering damage in accordance with Chapter VI of the Law and the guidance of competent state agencies on the preparation of budget estimates, management, use, and settlement of funds for the implementation of state compensation responsibility.

Chapter IV

IMPLEMENTING PROVISIONS

Article 20. Effectiveness

1. This Circular takes effect from January 28, 2016.

2. This Circular replaces Circular Jointly Issued No. 19/2010/TTLT-BTP-BTC-TTCP dated November 26, 2010 of the Ministry of Justice, Ministry of Finance, and Government Inspectorate guiding the implementation of state compensation responsibility in administrative management activities and Circular Jointly Issued No. 08/2013/TTLT-BTP-BTC-TTCP dated February 27, 2013 of the Ministry of Justice, Ministry of Finance, and Government Inspectorate amending and supplementing certain provisions of Circular Jointly Issued No. 19/2010/TTLT-BTP-BTC-TTCP dated November 26, 2010 of the Ministry of Justice, Ministry of Finance, and Government Inspectorate guiding the implementation of state compensation responsibility in administrative management activities.

Article 21. Transitional Provisions

1. In cases where the person suffering damage has requested compensation before the effective date of this Circular and their request for compensation has been accepted for handling, the responsible compensation agency continues to apply Circular Jointly Issued No. 19/2010/TTLT-BTP-BTC-TTCP dated November 26, 2010 of the Ministry of Justice, Ministry of Finance, and Government Inspectorate guiding the implementation of state compensation responsibility in administrative management activities to resolve the compensation;

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

Article 22. Implementation organization

During the implementation process, if there are difficulties, obstacles, or new issues arise, it is recommended that agencies, organizations, units, and individuals promptly reflect these to the Ministry of Justice, Ministry of Finance, and Government Inspectorate for consideration and resolution within their authority.