Joint circular 01/2012/TTLT-TANDTC-VKSNDTC-BTP: Guiding The Performance Of The State Compensation Liability In Civil And Administrative Proceedings

Link to law: http://vbpl.vn/tw/Pages/vbpqen-toanvan.aspx?ItemID=10884&Keyword=
Published: 2012

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Pursuant to the Law on State Compensation Liability, which was passed on June 18, 2009, by the XIIth National Assembly of the Socialist Republic of Vietnam at its 5th session;

The Supreme People’s Court, the Supreme People’s Procuracy and the Ministry of Justice jointly guide the performance of the state compensation liability in civil and administrative proceedings as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Joint Circular guides the implementation of a number of provisions of the Law on State Compensation Liability (below referred to as the Law) on the State’s liability to pay compensations to persons suffering from material damage or mental sufferings caused by illegal acts of procedure-conducting persons of courts (below collectively referred to as procedure-conducting persons) when conducting civil or administrative proceedings.

Article 2. Cases in which courts are liable to pay compensations

A court is liable to pay compensations in civil or administrative proceedings in the following cases:

1. It has applied provisional urgent measures in civil or administrative proceedings (in the cases specified in Clauses 1, 2 and 3, Article 28 of the Law)

a/ Application of provisional urgent measures in civil proceedings

a.1/ Procedure-conducting persons have issued at their own will decisions on application of provisional urgent measures not in the cases specified in Clauses 1, 2, 3, 4 and 5, Article 102 of Civil Procedure Code No. 24/2004/QH11 of June 15, 2004, which was amended and supplemented by Law No. 65/2011/QH12 of March 29, 2011, Amending and Supplementing a Number of Articles of the Civil Procedure Code (below collectively referred to as the Code).

For example: In the course of settlement of a civil case, the plaintiff did not request in writing the court to apply a provisional urgent measure under Clause 9, Article 102 and Article 111 of the Code regarding permission for sale of goods being frozen foods involved in a dispute and in the respondent’s possession, but the court issued a decision on application of a provisional urgent measure to compel immediate sale by the respondent possessing such goods on the market. Later, the party concerned made a complaint requesting the court to cancel the application of such measure. The competent court has issued a decision to cancel the application of such measure. In this case, if the party concerned makes a claim for compensation and suffers from an actual damage caused by the application of the provisional urgent measure by the court, the court shall consider paying compensation to the damage sufferer.

a.2/ Procedure-conducting persons have issued at their own will decisions on application of provisional urgent measures not in the cases specified in Clauses 1, 2, 3, 4 and 5, Article 102 of the Code but failed to fully satisfy the conditions specified in Articles 103, 104, 105, 106 and 107 of the Code and to comply with the guidance in Section 3 of Resolution No. 02/2005/NQ-HDTP of April 27, 2005, of the Judges’ Council of the Supreme People’s Court, guiding the implementation of the provisions of Chapter VIII of the Civil Procedure Code on Provisional Urgent Measures.

a.3/ Procedure-conducting persons have issued decisions on application of provisional urgent measures other than those requested by individuals, agencies or organizations.

For example: In the course of settlement of a civil case, the plaintiff requested in writing the court to apply a provisional urgent measure under Clause 8, Article 102 and Article 110 of the Code regarding the prohibition on change of the current state of a property involved in a dispute, but the court applied the provisional urgent measure of distraining such property under Clause 6, Article 102 and Article 108 of the Code. The party concerned later made a complaint requesting cancellation of the decision on application of the measure, and a competent court has issued a decision to cancel the application of the measure. In this case, if the party concerned makes a claim for compensation for damage and suffers from an actual damage caused by the application of the measure by the court, the court shall consider paying compensation to the damage sufferer.

a.4/ Procedure-conducting persons have issued decisions on application of provisional urgent measures beyond requests of individuals, agencies or organizations.

For example: Company A requested in writing a court to apply a provisional urgent measure under Clause 10, Article 102 and Article 112 of the Code to freeze an account of VND 500 million of company B at bank Z. However, the court has issued a decision on application of the measure to freeze the whole account of VND 10 billion of company B at bank Z. Company B has made a complaint about the court’s decision and a competent court has issued a decision to cancel such decision. In this case, if the damage sufferer makes a claim for compensation for damage and suffers from an actual damage caused by the application of the provisional urgent measure by the court beyond the request of the requester, the court shall consider paying compensation to the damage sufferer.

b/ Application of provisional urgent measures in administrative proceedings

b.1/ Procedure-conducting persons have issued at their own will decisions on application of provisional urgent measures without written requests.

b.2/ Procedure-conducting persons have applied provisional urgent measures other than those requested by involved parties.

For example: The People’s Committee of province N issued a decision to grant a certificate of rights to use a land area of 1,000 hectares for enterprise A to build a new urban center. When enterprise A built the urban center, local residents in areas surrounding the construction area initiated an administrative lawsuit against the People’s Committee of province N’s decision to grant the land use rights certificate to enterprise A on the grounds that this decision was unlawful and compensations for ground clearance were unsatisfactory. In addition to the lawsuit, the local residents requested the court to apply the provisional urgent measure of compelling enterprise A to stop building the urban center’s sections adjacent to their residences. However, the court issued a decision on application of the provisional urgent measure to compel the suspension of the construction of the whole urban center. Enterprise A made a complaint requesting the court to cancel the application of this measure. In this case, if enterprise A makes a claim for compensation for damage and suffers from an actual damage caused by the application of the measure by the court, the court shall consider paying compensation to the damage sufferer.

2. It has issued a judgment or decision which was, to its clear knowledge, unlawful or deliberately falsified the case file (Clause 4, Article 28 of the Law) on the following two conditions:

a/ The judgment or decision on settlement of a civil case or matter or an administrative case had been quashed according to cassation or reopening procedures;

b/ There had been a document confirming the illegal act specified in Clause 2, Article 3 of this Joint Circular.

Article 3. Documents confirming illegal acts of procedure-conducting persons

1. A document confirming a procedure-conducting person’s illegal act of issuing a decision on application of a provisional urgent measure (in the cases specified in Clause 1, 2 and 3, Article 28 of the Law and guided in Clause 1, Article 2 of this Joint Circular) is the final decision on complaint or petition settlement issued by the president of the competent court or the trial panel under Article 125 of the Code or Article 71 of the Law on Administrative Procedure.

2. A document confirming a procedure-conducting person’s illegal act of issuing a judgment or decision which is, to his/her clear knowledge, unlawful, or of deliberately falsifying the case file (as specified in Clause 4, Article 28 of the Law and guided in Clause 2, Article 2 of this Joint Circular) is any of the following documents:

a/ A legally effective criminal court judgment or decision determining that such procedure-conducting person has committed a crime of making an unlawful judgment, crime of making an unlawful decision or crime of falsifying the case file.

b/ An investigative agency’s decision on investigation cessation under Point a, Clause 2, Article 164 of the Criminal Procedure Code, a procuracy’s decision on cessation of the case under Clause 1, Article 169 of the Criminal Procedure Code, a court’s decision on cessation of the case under Article 180 of the Criminal Procedure Code for the reason that the procedure-conducting person, who has made a judgment or decision which is, to his/her clear knowledge, unlawful, or deliberately falsified the case file, is exempt from penal liability under Article 25 of the Penal Code.

c/ A court president’s decision on settlement of complaint or conclusion on denunciation contents determining that the procedure-conducting person has committed the act of issuing a judgment or decision which was, to his/her clear knowledge, unlawful, or of deliberately falsifying the case file in case no criminal case is instituted against this person or he/she dies while being investigated, prosecuted or tried for such act.

d/ A decision on cadre or civil servant disciplining against the procedure-conducting person who has committed the act of issuing a judgment or decision which was, to his/her clear knowledge, unlawful, or of deliberately falsifying the case file in case he/she is not examined for penal liability for such act.

Article 4. Procedures for issuing documents confirming illegal acts of procedure-conducting persons specified at Point c, Clause 2, Article 3 of this Joint Circular               

1. In case a damage sufferer claims that he/she suffers from a damage caused by a procedure-conducting person’s act of issuing a judgment or decision which is, to such person’s clear knowledge, unlawful, or of deliberately falsifying the case file, but no criminal case is instituted against such person or he/she dies while being investigated, prosecuted or tried for such act, the damage sufferer may file a complaint or denunciation with the court president managing the procedure-conducting person.

2. Within 10 days after receiving a written complaint or denunciation of a complainant or denunciator, if the court president managing the procedure-conducting person finds that the complaint or denunciation is grounded, he/she shall issue a decision to form an advisory council with at least 3 members to assist him/her in examining the procedure-conducting person’s complained or denounced act of issuing a judgment or decision which is, to such person’s clear knowledge, unlawful, or of deliberately falsifying the case file.

Decisions to form advisory councils are issued according to a set form.

Advisory council members must fully satisfy the conditions guided at Points b and c, Clause 2, Article 12 of this Joint Circular.

3. An advisory council shall consider and determine whether a procedure-conducting person has committed the complained or denounced act of issuing a judgment or decision which is, to his/her clear knowledge, unlawful, or of deliberately falsifying the case file. Opinions of the advisory council may be recorded in writing and certified with the signatures of all council members. In case council members hold divergent opinions, the written report to be sent to the court president must contain opinion(s) of each member. 

4. Based on the report of the advisory council, within 30 days after issuing the decision to form the advisory council, the court president shall consider issuing a decision on complaint settlement or conclusion on denunciation contents, determining whether a procedure-conducting person has committed the complained or denounced act of issuing a judgment or decision which is, to his/her clear knowledge, unlawful, or of deliberately falsifying the case file.

Court presidents shall issue decisions on complaint settlement or conclusion on denunciation contents according to a set form. These decisions must be promptly sent to complainants or denunciators and complained or denounced procedure-conducting persons.

5. Within 15 days after receiving a decision on complaint settlement or conclusion on denunciation contents of a district- or provincial-level court president, a complainant or denunciator and complained or denounced procedure-conducting person may file a complaint with the court president directly superior to the court president who has issued such decision. Within 15 days after receiving a complaint of the complainant or denunciator or complained or denounced procedure-conducting person, the immediate superior court president shall issue a complaint settlement decision as the final decision and send it to the complainant or denunciator or complained or denounced procedure-conducting person and the court having issued the decision on complaint or denunciation settlement decision.

For decisions on complaint settlement or conclusion on denunciation contents of the Supreme People’s Court President for complaints or denunciations about its procedure-conducting persons’ acts of issuing judgments or decisions which are, to their clear knowledge, unlawful, or of deliberately falsifying case files, decisions on complaint settlement or conclusion on denunciation contents of the Supreme People’s Court President are final.

Article 5. Statute of limitations for making compensation claims

1. The statute of limitations for making a compensation claim in the cases specified in Clauses 1, 2 and 3, Article 28 of the Law is 2 years after a competent court president or trial panel issues a document confirming an illegal act of a procedure-conducting person specified in Clause 1, Article 3 of this Joint Circular.

2. The statute of limitations for making a compensation claim in the case specified in Clause 4, Article 28 of the Law is 2 years after a document confirming an illegal act specified in Clause 2, Article 3 of this Joint Circular is issued.

In case a document confirming an illegal act is a criminal judgment or decision of a competent court determining that a procedure-conducting person has committed a crime of issuing a judgment or decision which was, to his/her clear knowledge, unlawful, or of deliberately falsified the case file, the statute of limitations for making a compensation claim is 2 years after such criminal judgment or decision becomes legally effective.

Article 6. Responsibility to report on payment of compensations

1. After paying compensation for damage caused by an illegal act of a procedure-conducting person in each case, a court liable to pay compensations in civil or administrative proceedings shall send the decision on compensation payment and report to its immediate superior court and the Supreme People’s Court on the following contents to serve the state management of compensations:

a/ Acceptance of the compensation claim;

b/ Issuance of the decision on compensation payment;

c/ Institution by the damage sufferer of a lawsuit to request the court to settle a dispute over state compensation;

d/ Completion of procedures for compensation payment;

e/ Performance of the reimbursement liability of the procedure-conducting person.

Enclosed with the report must be copies of documents relevant to the compensation payment.

2. After settling a case of dispute over state compensation in civil or administrative proceedings, the dispute-settling court shall send the legally effective judgment or decision to its immediate superior court and the Supreme People’s Court to serve the state management of compensations in civil and administrative proceedings.

3. Biannually and annually, people’s courts of provinces and centrally run cities shall summarize and report on payment of compensations in civil and administrative proceedings of courts at all levels in their localities to the Supreme People’s Court.

Chapter II

DETERMINATION OF COMPENSABLE DAMAGE

Article 7. Damage caused by property infringement

1. Damage caused by property infringement will be determined under Article 45 of the Law. For infringed property being land use rights, houses, construction works or other assets attached to land, compensable damage will also be determined under Article 45 of the Law and relevant regulations.

2. The duration for calculation of interests on the money amounts specified in Clause 4, Article 45 of the Law is counted from the date such amounts are remitted into the state budget under decisions of competent state agencies, confiscated, kept for judgment enforcement or deposited as security at competent agencies (in case of distraint of disputed property, freezing of accounts,...) to the date of issuance of decisions on compensation payment by courts liable to pay compensations or judgments or decisions of courts settling disputes over state compensations.

Article 8. Damage due to loss of or decrease in actual incomes     

1. Damage due to loss of or decrease in actual incomes of individuals

Actual incomes of individuals specified in Article 46 of the Law shall be determined as follows:

In case a damage sufferer earns stable incomes from state payroll salary or wage under a labor contract before the damage occurs, his/her actual incomes must be determined based on his/her salary or wage amount of the month preceding the month when the damage occurs.

In case a damage sufferer has a job and earns unstable incomes before the damage occurs, his/her actual incomes shall be determined based on his/her average income level in 3 consecutive months prior to the month when the damage occurs.

In case a damage sufferer, who is a farmer, fisherman, salt maker, forester, employee, small trader, craftsman or laborer in another sector, earns seasonal or unstable incomes, his/her actual incomes shall be determined based on the average income level of local laborers in the same sector. If it is impossible to determine such an average income level, his/her actual incomes shall be determined based on the minimum salary level applicable to state agencies at the time of compensation payment.

2. Damage due to loss of or decrease in actual incomes of organizations

Damage due to loss of or decrease in actual incomes of an organization specified in Article 46 of the Law shall be determined based on the average income level of 2 consecutive years prior to the time the damage occurs and according to lawful financial statements of such organization. If having no financial statement, the organization may evidence its lost or decreased incomes with other lawful documents or evidences prescribed by relevant laws.

Actual incomes of organizations which have operated for 2 years or under by the time the damage occurs shall be determined based on an average income earned during the period of its actual operation.

Chapter III

COMPENSATION PAYMENT PROCEDURES

Article 9. Right to make compensation claims

Damage sufferers may request courts to pay compensations when having documents confirming illegal acts of procedure-conducting persons specified in Article 3 of this Joint Circular.

Article 10. Compensation claim dossiers

1. A compensation claim dossier comprises:

a/ A written claim for compensation, made according to a set form;

b/ Accompanying documents and evidences, including:

b.1/ For compensation claims in the cases specified in Clauses 1, 2 and 3, Article 28 of the Law, a compensation claim dossier must contain one of the documents specified in Clause 1, Article 3 of this Joint Circular.

b.2/ For compensation claims in the case specified in Clause 4, Article 28 of the Law, a compensation claim dossier must contain one of the documents specified in Clause 2, Article 3 of this Joint Circular or a decision on trial of the case according to cassation or reopening procedures, quashing the illegal judgment or decision issued by the procedure-conducting person.

b.3/ Documents and evidences relevant to the compensation claim, such as documentary evidences of incomes or damage.

2. In case the claimant cannot immediately submit all documents and evidences specified at Point b, Clause 2 of this Article for an objective reason, he/she may additionally submit them at the request of the court in the course of settlement of his/her claim.

In case the claimant has applied all necessary measures but remains unable to gather documents and evidences for the satisfactory settlement of his/her compensation claim, he/she may request in writing the court to do so.

Article 11. Sending and acceptance of compensation claims

1. A compensation claimant shall send one compensation claim dossier set to the court liable to pay compensation by either of the following modes:

a/ Submission directly at the court;

b/ Sending to the court by post.

2. Upon receiving a compensation claim dossier, the court shall examine and determine the validity of the claim and accompanying documents and evidences; in case the dossier is incomplete, the court shall notify such in writing to the claimant for modification and supplementation within 15 days after being notified by the court.

3. Within 5 working days after receiving a compensation claim and valid accompanying documents and evidences, if seeing that this compensation claim falls under its settling competence, the dossier-receiving court shall accept the dossier and send a notice of acceptance, made according to a set form, to the claimant and the procedure-conducting person who has committed the damage-causing illegal act.

In case the court receives a compensation claim but sees that this claim falls beyond its settling competence, it shall send a notice thereof, made according to a set form, together with the compensation claim dossier, to the claimant, guiding the latter to send the claim to a court competent to settle it.

Article 12. Appointment of persons to settle compensation claims

1. Right after accepting a compensation claim, the president of a court liable to pay compensation shall issue a decision, made according to a set form, to appoint a representative to settle the compensation claim (below referred to as the representative).

In case the court president is the procedure-conducting person who has caused the damage or a relative of this person or the damage sufferer, the collective leadership of the court shall discuss and reach agreement on appointment of a representative to settle the compensation claim.

A relative of a procedure-conducting person or damage sufferer is his/her spouse (wife or husband), paternal or maternal grand father or grand mother, blood or adoptive father or mother, blood or adopted child, blood sibling, paternal or maternal grandchild, in-law son or daughter, swear brother or sister, or a person having an in-law, working or economic relationship with him/her, with clear evidences that there exists a close family relationship between them.     

2. A representative must fully satisfy the following conditions:

a/ For a district-level court, its representative may be its president or vice president; for a provincial-level court, its representative may be a divisional or higher-level leader; for the Supreme People’s Court, its representative may be a departmental or higher-level leader;

b/ Having working experience in the sector or field in which the compensation liability arises;

c/ Being not a relative of the procedure-conducting person who has caused the damage, or of the damage sufferer.

3. In case there is no representative fully satisfying the conditions specified at Point a, Clause 2 of this Article, a court liable to pay compensation shall appoint a judge as its representative to settle compensation claims.

Article 13. Verification of damage         

1. Within 5 working days after accepting a compensation claim, a representative shall organize the verification of the damage. The time limit for verification of the damage is 20 days after the compensation claim is accepted. For a damage involving many complicated circumstances or requiring verification at different places, the time limit for verification may be prolonged but must not exceed 40 days from the date of acceptance of the compensation claim.

2. The damage verification must be conducted under Article 18 of the Law. In case of necessity to value a property or assess its damage in order to determine the damage, courts liable to pay compensation shall apply the provisions of Articles 90 and 92 of the Code and relevant legal documents. Expenses for such valuation and assessment comply with the Ordinance on Assessment and Valuation Expenses; expenses for witnesses and interpreters in procedures are covered by the state budget.

Article 14. Negotiations on compensation

Negotiations on compensation comply with Article 19 of the Law. Written records of negotiations on compensation for damage must be made according to a set form.

Article 15. Issuance of compensation settlement decisions

Right after the conclusion of negotiations, the representative shall finalize the draft compensation settlement decision and report it to the president of the court liable to pay compensation.

Based on results of the damage verification and negotiations with the damage sufferer and opinions of related agencies (if any), the court liable to pay compensation shall issue a compensation settlement decision specified in Article 20 of the Law according to a set form.

The effect of compensation settlement decisions is determined under Article 21 of the Law.

Article 16. Delivery of compensation settlement decisions

1. Compensation settlement decisions shall be sent to damage sufferers, immediate superior courts of courts liable to pay compensation, the Supreme People’s Court and procedure-conducting persons that have committed damage-causing illegal acts.

2. Compensation settlement decisions must be sent to damage sufferers under Article 10 of the Government’s Decree No. 16/2010/ND-CP of March 3, 2010, detailing and guiding the implementation of a number of articles of the Law on State Compensation Liability.

3. Compensation settlement decisions shall be sent to superior courts of courts liable to pay compensation and the Supreme People’s Court, enclosed with reports on compensation settlement specified in Clause 1, Article 6 of this Joint Circular.

Article 17. Initiation of lawsuits to request courts to settle disputes over state compensation

A damage sufferer may initiate a lawsuit to request a court to settle a dispute over state compensation in the following cases:

1. He/she disagrees with the compensation settlement decision issued by the court liable to pay compensation under Clause 1, Article 20 of the Law.

2. Upon the expiration of the time limit specified in Clause 1, Article 22 of the Law, the court liable to pay compensation fails to issue a compensation settlement decision.

Article 18. Competence to settle disputes over state compensation

1. Courts competent to settle disputes over state compensation are district-level people’s courts as specified in Clause 1, Article 23 of the Law.

2. In case district-level people’s courts as specified in Clause 1, Article 23 of the Law are those liable to pay compensation, they shall report to their immediate superior people’s courts for settling the disputes according to first-instance procedures.

Article 19. Procedures for settlement of disputes over state compensation

Procedures for settlement of disputes over state compensation at courts comply with the law on civil procedure.

Article 20. Payment of compensations        

Based on their own legally effective compensation settlement decisions or legally effective judgments or decisions of courts which have settled disputes over state compensation, courts liable to pay compensation shall pay compensations to damage sufferers under Chapter VI of the Law and guiding documents.

Chapter IV

PROCEDURES FOR PERFORMANCE OF THE REIMBURSEMENT LIABILITY OF PROCEDURE-CONDUCTING PERSONS

Article 21. Formation of councils to examine reimbursement liability

1. Within 20 days after completing the payment of compensation, the president of a court liable to pay compensation shall issue a decision to form a council to examine the reimbursement liability (below referred to as council), made according to a set form.

In case the court president is the procedure-conducting person who has caused the damage, the collective leadership of the court liable to pay compensation shall discuss and reach agreement on issuance of a decision to form a council.

2. A council is composed of:

a/ Its chairman who is the president of the court.

In case the court president is the procedure-conducting person who has caused the damage or a relative of this person or the damage sufferer, the collective leadership of the court shall discuss and reach agreement on appointment of a vice president as the chairman;

b/ A representative of the trade union organization of the court;

c/ A representative of the organization and personnel section of the agency managing the procedure-conducting person who has caused the damage;

d/ The person in charge of finance-accounting work of the court;

e/ Experts in related economic, technical and legal fields.

In case many procedure-conducting persons from different courts have jointly caused the damage, representatives of these courts’ leaderships shall join the council.

Relatives of the procedure-conducting person who has caused the damage and of the damage sufferer may not join the council.

Article 22. Tasks and powers of councils

A council has the following tasks and powers:

1. To consider and assess the level of damage caused to sufferers and the level of fault of each procedure-conducting person who has caused the damage;

2. To identify economic conditions of each procedure-conducting person who has caused the damage;

3. To recommend the level of reimbursement and method applicable to each damage-causing person to the president of the court liable to pay compensation or the president of the immediate superior court in case the president of the court liable to pay compensation is the one who has caused the damage;

4. To dissolve itself upon accomplishment of its tasks.         

Article 23. Issuance of reimbursement decisions

1. Within 30 days after completing the payment of compensation, the president of the court liable to pay compensation liability shall base himself/herself on recommendations of the council to issue a reimbursement decision according to a set form.

In case the court president is the procedure-conducting person who has caused the damage, the president of the immediate superior court is competent to issue a reimbursement decision.

2. In case the person competent to issue reimbursement decisions has opinions different from recommendations of the council, he/she may decisions based on his/her own opinions and take responsibility before law for such decisions.

Article 24. Collection, remittance, management and use of reimbursed money amounts

1. Persons with the reimbursement liability shall make reimbursements within time limits, at levels and by methods stated in reimbursement decisions.

2. In case there is one of the documents specified at Points a and b, Clause 2, Article 3 of this Joint Circular confirming an illegal act of the procedure-conducting person, such person is liable to reimburse the whole money amount paid by the State as compensation to the damage sufferer.

3. In case there is one of the documents specified in Clause 1 and at Points c and d, Clause 2, Article 3 of this Joint Circular confirming an illegal act of the procedure-conducting person, the determination of an amount to be reimbursed by such person complies with Article 57 of the Law and Article 16 of the Government’s Decree No. 16/2010/ND-CP of March 3, 2010, detailing and guiding the implementation of a number of articles of the Law on State Compensation Liability.

4. Courts liable to pay compensation shall fully and promptly collect and remit all reimbursed money amounts into the state budget under the Law and guiding documents.

Article 25. Handling of procedure-conducting persons who fail to perform the reimbursement liability

1. A person who has been notified of his/her reimbursement liability thrice by a court liable to pay compensation but fails to perform his/her reimbursement liability shall be disciplined under law.

2. In case a person with the reimbursement liability has been transferred to another agency in the state apparatus, the state agency currently managing him/her shall urge the performance of the reimbursement liability, decide on handling measure(s) under Clause 1 of this Article, and notify such to the court liable to pay compensation and the person who has issued the reimbursement decision.

3. In case persons with the reimbursement liability no longer work in state agencies, agencies liable to pay compensation shall take measures to recover reimbursed money amounts under law.

Article 26. Settlement of the reimbursement liability when courts liable to pay compensation issue reimbursement decisions in case persons with the reimbursement liability die

In case a court liable to pay compensation has issued a reimbursement decision but the person with the reimbursement liability dies, this person’s heirs shall perform his/her liability.

In case heirs of a person with the reimbursement liability fail to perform the liability, a court liable to pay compensation shall take measures to recover the reimbursed money amount under law.

Chapter V

IMPLEMENTATION PROVISIONS

Article 27. Effect

1. This Joint Circular takes effect on November 12, 2012.

2. From the effective date of this Joint Circular, a court that tries a procedure-conducting person for his/her act of issuing a judgment or decision which is, to his/her clear knowledge, unlawful, or of deliberately falsifying the case file shall separately settle the state compensation liability under the Law and guiding documents.

3. From the effective date of this Joint Circular, if there has been a criminal judgment or decision identifying a procedure-conducting person who had committed the crime of issuing an unlawful judgment or decision or falsifying a case file and the state compensation liability has been settled in such criminal judgment or decision, the guidance in this Joint Circular shall not apply to separately re-settling the state compensation liability. Appeals or protests against criminal judgments and decisions on settlement of the state compensation liability (if any) must be settled according to the criminal procedures.

Article 28. Organization of implementation

Any difficulties or problems arising in the course of implementation should be reported to the Supreme People’s Court for consideration and settlement in coordination with the Supreme People’s Procuracy and the Ministry of Justice.