Joint Circular No. 24/2011/TTLT-BTP-BQP guides the implementation of the State's liability for compensation in civil enforcement activities.

JOINT CIRCULAR

Guidelines for Implementing State Compensation Responsibilities in Civil Enforcement ActivitiesIndustry and

activities of civil enforcement

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

Pursuant to the Civil Enforcement Law dated November 28, 2008;

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 Ministry of Justice and the Ministry of National Defense hereby jointly issue guidelines for implementing state compensation responsibilities in civil enforcement activities as follows:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

These joint circulars guide the implementation of state compensation responsibilities in civil enforcement activities concerning: determining state compensation liability; procedures for handling compensation claims; determining compensable damages; and reporting on compensation resolution.

Article 2. Applicability

These joint circulars apply to organizations and individuals suffering losses; agencies responsible for compensation in civil enforcement activities as stipulated in Article 4 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 collectively as Decree No. 16/2010/NĐ-CP), state management agencies regarding compensation work in civil enforcement activities, and other agencies, organizations, and individuals related to state compensation.

Chapter II

DETERMINING STATE COMPENSATION LIABILITY IN CIVIL ENFORCEMENT ACTIVITIES

CIVIL ENFORCEMENT

Article 3. Basis for Determining State Compensation Liability in Civil Enforcement Activities

1. State compensation liability in cases where a public servant issues a decision or implements a decision on civil enforcement proceedings as provided for in Article 38 of the Law on State Compensation Liability (hereinafter referred to collectively as the Law on State Compensation Liability) shall arise only if 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 provided for in Article 38 of the Law on State Compensation Liability;

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 a public servant fails to issue a decision or implement a decision on civil enforcement proceedings as provided for in Article 38 of the Law on State Compensation Liability shall arise only if the following conditions are met:

a) The conditions prescribed in Clause 1 of this Article;

b) There is intentional fault of the enforcement officer.

3. The State shall not compensate for damage entirely caused by the fault of the person suffering loss; in cases where both the public servant and the person suffering loss are at fault, the State shall only compensate for a portion of the damage corresponding to the fault of the public servant.

Article 4. Official documents from competent state authorities that determine or serve as the basis for determining that a public servant has committed an unlawful act

1. A decision on administrative appeal resolution by a competent authority as provided for in Article 142 of the Civil Enforcement Law which has taken legal effect.

2. A conclusion on the substance of a complaint by a competent authority as provided for in Article 157 of the Civil Enforcement Law.

3. A judgment or decision of a competent court which has taken legal effect.

Article 5. Determination of Intentional Fault of Enforcement Officers

In cases where the official documents of the competent authorities as provided for in Article 4 of these joint circulars have determined intentional fault of the public servant, the agency responsible for compensation shall base its resolution of compensation on such documents for the person suffering loss.

In cases where the documents as provided for in Article 4 of these joint circulars have not determined intentional fault of the public servant, the agency responsible for compensation shall determine intentional fault of the public servant based on the judgment or decision of the court, decision on administrative appeal resolution, decision on complaint resolution by a competent state authority, or relevant materials and evidence provided by the parties, applying the provisions of Clause 2, Article 308 of the Civil Code 2005.

Article 6. Determination of the Scope of Compensation Liability

The determination of the scope of compensation liability in certain specific cases as provided for in Article 38 of the Law on State Compensation Liability shall be carried out as follows:

1. In cases of issuing or intentionally failing to issue a decision on civil enforcement as provided for in Point a, Clause 1, Article 38 of the Law on State Compensation Liability, including:

a) The head of the civil enforcement agency issues a decision on civil enforcement contrary to the law;

b) The head of the civil enforcement agency intentionally fails to issue a decision on civil enforcement as prescribed in Clause 1 and Clause 2, Article 36 of the Civil Enforcement Law.

2. In cases of revoking, amending, supplementing, or canceling decisions on civil enforcement as provided for in Point b, Clause 1, Article 38 of the Law on State Compensation Liability, including:

a) The head of the civil enforcement agency, or an enforcement officer issues a decision to revoke, amend, supplement, or cancel a decision on civil enforcement contrary to the law;

b) The head of the civil enforcement agency, or an enforcement officer intentionally fails to issue a decision to revoke, amend, supplement, or cancel a decision on civil enforcement when there is a basis to revoke, amend, supplement, or cancel the decision on civil enforcement according to the law.

3. In cases of applying security measures for civil enforcement as provided for in Point c, Clause 1, Article 38 of the Law on State Compensation Liability, including:

a) An enforcement officer issues a decision to apply security measures for civil enforcement without legal grounds or intentionally fails to issue a decision to apply security measures when there are grounds to apply security measures in cases where they apply security measures themselves;

b) An enforcement officer fails to issue or intentionally fails to issue a decision to apply security measures for civil enforcement when applying security measures upon request of the parties;

c) In cases where an enforcement officer issues a decision to apply security measures for civil enforcement in accordance with the request of the parties but causes damage, it does not fall within the scope of state compensation liability.

4. In cases of enforcing civil enforcement as provided for in Point d, Clause 1, Article 38 of the Law on State Compensation Liability, including:

a) An enforcement officer issues a decision to enforce civil enforcement contrary to the law;

b) An enforcement officer intentionally fails to issue a decision to enforce civil enforcement when there are grounds to apply enforcement measures according to the law.

5. In cases of enforcing a court's decision on provisional measures as provided for in Point đ, Clause 1, Article 38 of the Law on State Compensation Liability, including:

a) The head of the civil enforcement agency issues a decision on civil enforcement to enforce a court's decision on provisional measures contrary to the law;

b) The head of the civil enforcement agency intentionally fails to issue an enforcement decision to enforce the court's decision on applying urgent temporary measures within the time limit prescribed by law;

c) In cases where the head of the civil enforcement agency issues an enforcement decision to enforce the court's decision on applying urgent temporary measures in accordance with that decision but causes damage, it does not fall within the scope of compensation liability in civil enforcement activities.

6. Cases of suspending enforcement of judgments provided for in point e, Clause 1, Article 38 of the Civil Compensation Law include:

a) The head of the civil enforcement agency issues a decision to suspend enforcement of judgments contrary to the law;

b) The head of the civil enforcement agency intentionally fails to proactively issue a decision to suspend enforcement of judgments when the enforcement of judgments falls under one of the cases stipulated in Clause 1, Article 48 of the Civil Enforcement Law or intentionally fails to issue a decision to suspend enforcement of judgments upon receiving a request from a person with authority to lodge a protest against a judgment or decision according to the cassation or re-trial procedure stipulated in Clause 2, Article 48 of the Civil Enforcement Law;

c) In cases where the head of the civil enforcement agency issues a decision to suspend enforcement of judgments in accordance with point b, Clause 1, Article 48 of the Civil Enforcement Law or upon receiving a request from a person with authority to lodge a protest according to the provisions of Clause 2, Article 48 of the Civil Enforcement Law and causes damage, it does not fall within the scope of compensation liability in civil enforcement activities.

7. Cases of temporarily suspending enforcement of judgments provided for in point g, Clause 1, Article 38 of the Civil Compensation Law include:

a) The head of the civil enforcement agency issues a decision to temporarily suspend enforcement of judgments contrary to the law;

b) The head of the civil enforcement agency intentionally fails to issue a decision to temporarily suspend enforcement of judgments contrary to the law;

c) In cases where the head of the civil enforcement agency issues a decision to temporarily suspend enforcement of judgments upon receiving a notification from the court regarding the acceptance of a petition requesting the initiation of bankruptcy proceedings against the person subject to enforcement according to the provisions of Clause 2, Article 49 of the Civil Enforcement Law and causes damage, it does not fall within the scope of compensation liability in civil enforcement activities.

8. Cases of terminating enforcement of judgments provided for in point g, Clause 1, Article 38 of the Civil Compensation Law include:

a) The head of the civil enforcement agency issues a decision to terminate enforcement of judgments contrary to the law;

b) The head of the civil enforcement agency intentionally fails to issue a decision to terminate enforcement of judgments when the enforcement of judgments falls under the cases stipulated in Clause 1, Article 50 of the Civil Enforcement Law.

9. Cases of continuing enforcement of judgments provided for in point h, Clause 1, Article 38 of the Civil Compensation Law include the following cases:

a) The head of the civil enforcement agency issues a decision to continue enforcement of judgments contrary to the law;

b) The head of the civil enforcement agency intentionally fails to issue a decision to continue enforcement of judgments when the grounds and deadlines for suspending enforcement of judgments according to Clause 1, Clause 2, Article 48 of the Civil Enforcement Law no longer exist or has received one of the decisions stipulated in Clause 3, Article 49 of the Civil Enforcement Law.

10. Organizing enforcement or intentionally failing to organize enforcement of decisions provided for in Clause 1, Article 38 of the Civil Compensation Law includes:

a) The head of the civil enforcement agency, enforcement officers, and other public servants have acts contrary to the law during the process of organizing enforcement of enforcement decisions;

b) The head of the civil enforcement agency, enforcement officers, and other public servants intentionally fail to organize enforcement of enforcement decisions as prescribed by law.

Article 7. Actual Damage

Actual damage is real damage that the victim must bear due to the illegal act of public servants causing damage as prescribed by the Civil Compensation Law and related laws..

Chapter III

DETERMINATION OF COMPENSABLE DAMAGE

Article 8. Damage caused by infringement of property

1. Damage caused by the infringement of property is determined according to Article 45 of the Civil Compensation 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 Civil Compensation Law and relevant laws.

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

Article 9. Damage caused by actual loss or reduction in income

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

Damage caused by actual loss or reduction in income of organizations as provided for in Article 46 of the Civil Compensation Law is determined based on the average income of two consecutive years prior to the occurrence of the damage. The income of the organization is determined based on the organization's legitimate financial statements; in cases where there are no financial statements, the organization may prove the actual loss or reduction in income through other legitimate documents and evidence as prescribed by 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 is determined based on the average income during its actual period of operation.

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

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

In cases where the victim had employment and monthly income but the income was not stable before the occurrence of the damage, the average income of three months immediately preceding the occurrence of the damage is taken as the basis for determining the actual income.

In the case where before the damage occurs, the person suffering the damage is a farmer, fisherman, salt worker, forest grower, hired worker, small trader, artisan, or other worker with income that is seasonal or unstable, the average income level of similar workers in the locality shall be taken as the basis for determining the actual income amount; if the average income cannot be determined, the minimum wage prescribed by the State at the time of compensation resolution shall be applied.

Chapter IV

COMPENSATION RESPONSIBLE AGENCIES AND PROCEDURES FOR COMPENSATION RESOLUTION

Article 10. Compensation responsible agencies in civil enforcement activities

1. The determination of the compensation responsible agency in civil enforcement activities shall be carried out in accordance with the provisions of Article 4 of Decree No. 16/2010/NĐ-CP.

2. In cases where the civil enforcement agency entrusts another organization or individual to perform tasks related to civil enforcement activities causing damage within the scope of compensation liability as stipulated by the Law on State Responsibility for Damage, the civil enforcement agency shall bear the responsibility for compensation.

3. In cases where the person suffering damage cannot identify the compensation responsible agency or there is no agreement on the compensation responsible agency, the determination of the compensation responsible agency shall be carried out in accordance with the provisions of point a, Clause 1, Article 23 of Decree No. 16/2010/NĐ-CP..

Article 11. Claim for compensation file

The person suffering damage shall submit one set of claim for compensation files to the compensation responsible agency, including:

a) Claim for compensation form according to Form No. 01a; 01b issued together with this Circular;

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

c) Relevant evidence and materials related to the claim for compensation.

Article 12. Acceptance of Compensation Claim Petitions

1. Within two years from the date of receipt of the document from the competent authority identifying the illegal act of the public servant, the person claiming compensation shall submit the claim for compensation file to the compensation responsible agency specified in Article 4 of Decree No. 16/2010/NĐ-CP through one of the following methods:

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

b) Sending the claim for compensation file to the compensation responsible agency via the postal service system.

2. Upon receiving the claim for compensation file, the compensation responsible agency must check and determine the validity of the application and accompanying documents; in cases where the file is incomplete, it must guide the person claiming compensation to supplement.

For documents from the competent state agency identifying the illegal act of the public servant which the person claiming compensation is unable to provide, the compensation responsible agency has the responsibility to collect such documents.

3. Within five working days from the date of receipt of the valid application and documents, if the claim for compensation is determined to fall under its jurisdiction, the agency receiving the file must process the case and notify the person claiming compensation in writing about the acceptance of the application; in cases where the agency receiving the application believes that the matter does not fall under its jurisdiction, it must return the file and guide the person claiming compensation to submit the application to the state management agency regarding compensation to determine the compensation responsible agency in accordance with Chapter IV of Decree No. 16/2010/NĐ-CP.

Article 13. Appointing a representative to handle the compensation resolution

1. Immediately after accepting the claim for compensation application, the head of the compensation responsible agency must issue a decision appointing a representative to handle the compensation resolution (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 person claiming compensation.

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 cases where the compensation responsible agency is a Civil Enforcement Office and does not have a civil servant meeting the conditions stipulated in Clause 2, Article 7 of Decree No. 16/2010/NĐ-CP, the Enforcement Officer of the Office may be appointed as the representative to handle the compensation resolution.

Article 14. Damage Verification

Damage verification shall be conducted in accordance with Article 18 of the Law on State Responsibility for Damage. Within five working days from the date of accepting the claim for compensation application, the representative must organize the damage verification. Damage verification shall be based on the evidence and materials provided by the person claiming compensation.

Article 15. Negotiation on Compensation

Within three working days from the end of the damage verification, the representative must negotiate with the person suffering damage.

The negotiation period is thirty days from the end of the damage verification; in cases where the matter involves many complex circumstances, the negotiation period may be extended but not exceeding forty-five days.

The negotiation team, negotiation location, and negotiation record content shall be carried out in accordance with Clause 2, Clause 3, and Clause 4 of Article 19 of the Law on State Responsibility for Damage. The negotiation record shall be made according to Form No. 02 issued together with this Circular.

  Article 16. Issuance of Decision on Compensation Resolution

Immediately after completing the negotiation, the representative must finalize the draft decision on compensation resolution to report to the head of the compensation responsible agency.

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

In cases Where the superior civil enforcement agency of the civil enforcement agency responsible for compensation appoints a representative to handle the compensation resolution as stipulated in Clause 2, Article 13 of this Joint Circular, the representative handling the compensation resolution shall issue the Decision on Compensation Resolution. The Decision on Compensation Resolution shall be made according to Form No. 03 issued together with this Circular.

Article 17. Transfer of Compensation Resolution Decision

The representative of the organization shall transfer the compensation resolution decision in accordance with the procedures stipulated in Article 10 of Decree No. 16/2010/NĐ-CP.

Article 18. Initiating a Lawsuit to Request the Court to Resolve Compensation

The person suffering damage has the right to initiate a lawsuit requesting the court to resolve compensation in the following cases:

1. The person suffering damage disagrees with the compensation resolution decision as prescribed in Clause 1 of Article 22 of the Civil Compensation Law.

2. The deadline for issuing the compensation resolution decision has expired but the compensation resolution agency has not issued the compensation resolution decision as prescribed in Clause 1 of Article 22 of the Civil Compensation Law.

The expiration date of the deadline for issuing the compensation resolution decision as prescribed in Article 22 of the Civil Compensation Law is determined as the eleventh day from the date on which the representative of the compensation resolution agency and the person suffering damage sign the record concluding the negotiation. negotiation.

Article 19. Payment of Compensation

1. Within five working days from the date the judgment or compensation resolution decision becomes legally effective, the responsible compensation agency must immediately transfer the compensation claim file to the central state administrative agency managing civil enforcement proceedings to implement the procedures for issuing and disbursing compensation funds 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, it must transfer the compensation claim file to the Civil Enforcement General Department - Ministry of Justice;

b) In the case where the responsible compensation agency is a civil enforcement agency under the Ministry of National Defense, it must transfer the compensation claim file to the Civil Enforcement Department - Ministry of National Defense.

2. The procedures for issuing and disbursing compensation funds to the person suffering damage shall be implemented in accordance with Chapter VI of the Civil Compensation Law and relevant laws.

Article 20. Responsibility for Reporting on Compensation Resolution

1. The responsible compensation agency in civil enforcement activities must report on compensation resolution in accordance with Article 12 of Decree No. 16/2010/NĐ-CP.

2. During the implementation of compensation resolution, the responsible compensation agency in civil enforcement activities must report to the Civil Enforcement General Department and the State Compensation Agency on the following contents to serve state management of compensation:

a) Acceptance of compensation claim petitions;

b) Issuance of compensation resolution decisions;

c) The person suffering damage initiates a lawsuit requesting the court to resolve compensation;

d) Implementation of procedures for disbursing compensation funds.

Chapter V

IMPLEMENTING PROVISIONS

Article 21. Effectiveness

This Circular takes effect from January 30, 2012

Article 22. Application of Transitional Provisions on Compensation Resolution in Civil Enforcement Activities

1. Cases eligible for compensation in civil enforcement activities as prescribed in Government Decree No. 47/CP dated May 3, 1997 on compensation for damages caused by public officials, civil servants, and persons with authority in judicial proceedings, where the damage occurred between January 1, 2008 and before January 1, 2010 and have not yet requested compensation, shall apply the Civil Compensation Law and guiding documents for implementation to resolve.

2. Cases eligible for compensation in civil enforcement activities as prescribed in Government Decree No. 47/CP dated May 3, 1997 on compensation for damages caused by public officials, civil servants, and persons with authority in judicial proceedings, where the person suffering damage had already requested compensation before January 1, 2010 but was not accepted, shall apply the Civil Compensation Law and guiding documents for implementation to resolve.

Article 23. Responsibilities for Implementation and Organization

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 or obstacles, individuals and organizations are advised to report to the Ministry of Justice for coordination with the Ministry of National Defense to study and resolve./.