Circular 11/2013/ttlt-Bca-Tandtc-Vksndtc-Bqp-Doj: Guidelines For Implementation Of The State Compensation Liability In The Criminal Enforcement Activities

Original Language Title: Thông tư liên tịch 11/2013/TTLT-BCA-BQP-BTP-VKSNDTC-TANDTC: Hướng dẫn thực hiện trách nhiệm bồi thường của Nhà nước trong hoạt động thi hành án hình sự

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CIRCULAR guide implementation of the State compensation liability in criminal enforcement operation _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ pursuant to the law of the State compensation liability in 2009;
The base set of criminal law in 2003;
Pursuant to the law the criminal enforcement in 2010;
Pursuant to the law the special amnesty in 2007;
Pursuant to the criminal of 1999 (amended and supplemented in 2009);
Pursuant to Decree No. 16/2010/ND-CP dated 3/3/2010 of the Government detailing and guiding the implementation of some articles of the law of the State compensation liability;
The Minister of public security, the Minister of Defense, Minister of Justice, Minister Supreme People's Prosecutor and the Chief Justice of the Supreme People's Court issued a circular guiding implementation of the State compensation liability in the criminal enforcement activities.
Chapter I GENERAL PROVISIONS article 1. Scope this guidance circular made some provisions of the law on State compensation responsibility (hereafter abbreviated as TNBTCNN Law) on determining the compensation liability, damage compensation, compensation procedures and the management of State compensation in the criminal enforcement activities.
Article 2. The object that applies to this circular apply to agencies, organizations, who are responsible for compensation for damages in the criminal enforcement; the person on duty criminal enforcement caused damage to indemnification; individuals, organizations related to compensation for damages in the criminal enforcement.
Chapter II IDENTIFIES the RESPONSIBILITY of COMPENSATION article 3. The scope of liability to indemnify the State is responsible for damages due to the unlawful behaviour of the person on duty in criminal enforcement activities in one of the following cases: 1. The decision to enforce the death penalty for people who were sentenced to death is pregnant women , women are raising children under 36 months of age, who had been President of decision reduced the punishment, juveniles.
2. Detained persons sentenced to imprisonment exceeding the time limit must enforce the judgment according to the verdict, the decision of the Court.
3. Do not make the decision to postpone the enforcement of a court judgment against the sentenced imprisonment.
4. Do not make the decision to temporarily suspend the enforcement of a court judgment against the sentenced imprisonment.
5. Do not make the decision to reduce the duration of the imprisonment penalty for the courts who are criminal prisoners.
6. Do not make parole decisions of the President for the sentenced imprisonment parole.
7. Do not perform great XA Parliament's decision for the person convicted was great.
Article 4. Determining liability 1. Compensation liability for cases of instructions in article 3 of this circular arises when there are enough of the following conditions: a) has the text of the State bodies are competent to determine the behavior of the person on duty is contrary to law;
b) unlawful acts of the person on duty in the scope of responsibility of compensation guidelines in article 3 of this circular;
c) Have actual damage occurs;
d) causality relationship between actual damage occurred and unlawful behaviour of the person on duty.
2. State compensation for damages not occurred completely the fault of the person suffering the damage. The case of the duty and the victims together with errors, the State only partially compensate the damage corresponds to the error section of the duty.
Article 5. The text of the State bodies are competent to determine the unlawful behavior of the person on duty 1. Complaint resolution decision of the competent person has legal effect.
2. conclusion of the content of the agency or person authorized under the provisions of the law.
3. The verdict, the decision of the competent court has legal effect.
Article 6. The Agency is responsible for compensation of 1. The Agency is responsible for compensation in the criminal enforcement activities specified in clause 1 Article 40 TNBTCNN Law is determined as follows: a) the Court, the city in Central or Court of military zone and had the equivalent of Chief Justice a decision enforcing the death penalty are responsible in damages for instructions paragraph 1 article 3 circular This President;
b) criminal enforcement agency district, district, town, city in the province, the criminal enforcement agencies and equivalent military region is responsible for the compensation case instructions in paragraph 2 of article 3 of this circular; The Ministry of public security, the Ministry of defence is responsible for the compensation case instructions in paragraph 2 of article 3 of this circular in case of parole are foreigners;
c) detention, detention under the Ministry of public security, the Ministry of defence, the criminal enforcement agencies of public security provincial level, city level, criminal enforcement agency district, district, town, city in the province, the criminal enforcement agencies and equivalent military district are responsible in damages for cases directed at the 3 , 4, 5 article 3 of this circular;
d) detention, detention under the Ministry of public security, the Ministry of defence, public safety, province of the central cities, and equal responsibility for the compensation case instructions in clause 6 of article 3 of this circular;
DD) direct people management agency on duty made unlawful acts causing damage compensation responsibility for guidance in paragraph 7 of article 3 of this circular.
2. where the Agency has the responsibility of compensation prescribed in paragraph 1 of this article has been split, merged, consolidated or dissolved; at the time of accepting the claim single person on duty caused damage no longer work at the Agency; the authorization, delegating implementing acts; There are many people on duty in many agencies together caused damages or where there are many people on duty in the central authorities and local authorities together to cause damage, the determining authority has responsibility for compensation is made according to the provisions in clause 2 article 14 of law TNBTCNN.
Article 7. Actual damage 1. The real damage is to be compensated for damages that the victims have to suffer, including: physical damage and damage caused by loss of morale.
2. Physical damage are the responsibility of State compensation in the criminal enforcement activities include: damage caused by compromised assets according to the provisions of article 45 of law TNBTCNN; damage caused by lost or real income decreasing according to the provisions of article 46 of law TNBTCNN; the physical damage caused by the victims died under the provisions of article 48 of law TNBTCNN; the physical damage caused by compromised health according to the provisions of article 49 of law TNBTCNN; the actual cost of the victims dropped out during the criminal enforcement as the cost to ship a car, go back.
3. The damages due to the loss of the spirit are the responsibility of State compensation in the criminal enforcement activities include: damage caused by loss of morale in the Executive time penalty prescribed in clause 2 Article 47 of law TNBTCNN; damage caused by loss of morale in the case of the victims of death prescribed in paragraph 3 to article 47 of law TNBTCNN; damage caused by loss of spirit in case of compromised health as defined in paragraph 4 to article 47 of law TNBTCNN; damage caused by loss of morale in the case for improving enforcement detention, imprisonment not to affect probation provisions in clause 5 Article 47 of law TNBTCNN.
Chapter III DETERMINATION of DAMAGE COMPENSATION article 8. Damage caused by compromised assets 1. When applying Article 45 of law TNBTCNN to determine the damage caused by compromised assets, to note some of the following points: a) the market price specified in item 1 and item 2 Article 45 of law TNBTCNN is the market price at the time of claim resolution and locally where the damage occurs;
b) where damages arise due to non-use, rental property exploitation that before levy had the lease of property, the real income lost calculated on damage compensation is determined as follows:-for property rental contract is a lease contract active, real income is lost is determined according to the price rent of the property or assets of the same type have the same specifications, features, quality and effects at the time of compensation;
-For property rental contract is a contract of financial leasing, the actual income loss is worth the rest of the contract.
c) where compromised property is land use, housing, buildings and other assets tied to the ground stroke damage compensation is determined according to article 45 of law TNBTCNN and the provisions of the law of the land, building and housing. 2. Interest for the time the funds prescribed in paragraph 4 to article 45 of law TNBTCNN is calculated from the date the victims paid into the State budget, foreclosure, execution, put money in to ensure the Agency has the authority to promulgate the decision on compensation of the Agency are responsible for compensation or judgement day the decision of the Court about the settlement of compensation effect of the law.
Article 9. Damage caused by lost or real income decreasing 1. The actual income of the individuals specified in article 46 of law TNBTCNN are defined as follows: where before the damages that the victims have steady income from wages in payroll, the money from the labor contract shall be based on the salary, wages, that's their adjacent before damage occurs to determine actual earnings.
The case before the damages that the victims have jobs, and monthly income but not stable, the average income level of the adjacent three months prior to the time the damage occurs as a base to determine the actual earnings.

The case before the damages that the victims are farmers, fishermen, salt, people who do the hiring, small merchants, craftsmen, other labor income but seasonal or not stable then retrieved the average income level of local workers of the same kind; If not identified the median income then retrieved by the State minimum wage regulations applied to public servants working in the State administration at the time the compensation settlement as a basis to determine the actual earnings.
2. The victims (including cases of dead) to be compensated for lost actual earnings or result in the time they have to obey the prison penalty expired, in no time be postponed, not be temporarily suspended the prison sentence, the Executive in times of overdue parole decisions enforcement property, and during treatment due to compromised health. During this time, the victims are bodies, employers who pay wages, pay the full labor under the provisions of the labour law, social insurance, they do not receive compensation respectively; If the victims are bodies, employers who pay wages, pay labour part then the rest are defined as decreasing real income and they are compensating decreasing earnings.
Article 10. Damage due to the loss of the spirit 1. Damage due to the loss of the spirit during project Executive imprisonment prescribed in clause 2 Article 47 of law TNBTCNN are defined as follows: a) a day minimum wage is determined by obtaining the minimum wage stipulated by the Government apply to public servants working in the State administrative organs at the time of compensation divided by 22 is the number of days the average of each months.
For example, at the time of issuance of this circular, the general minimum wage by State regulation is the same, so a 1,150,000 on minimum wage would be: 1,150,000 VND: 22 = 52,272 copper.
b) Of Executive imprisonment sentence to date is the actual date that the compensation must accept the imprisonment sentence Act expired.
2. Damage caused by loss of morale in the case of the victims of death prescribed in paragraph 3 to article 47 of law TNBTCNN are defined as follows: a) If the victims died during imprisonment sentence needs that are not their own fault, force majeure events, urgent situation or person suffering damages in the case prescribed in clause 1 Article 3 This joint investment, then their relatives to compensation of damage due to the loss of a spirit is three hundred sixty months calculated according to the general minimum wage by State regulations at the time the compensation settlement. In this case, no additional compensation for damages due to the loss of the spirit according to the provisions in clause 2 and clause 5 Article 47 of law TNBTCNN and follow the instructions in paragraph 1 of this article;
b) If imprisonment sentence Executive who died during imprisonment sentence accepted that their own fault or because of unforeseen events, the urgent situation of their relatives not be compensation for damage due to the loss of the spirit according to the provisions in clause 3 of the Article 47 of law TNBTCNN;
c) compensation for damages due to the loss of spirit is compensation for the relatives of the victims (wife, husband, father, mother, father, foster mother, child, adopted child of the person who suffered the damage, who directly cultivates the victims). Those who are compensated in this case must be alive at the time of the victims die.
Article 11. The physical damage caused by the victims die 1. Reasonable expenses for the cure, fostering, care of people suffering damage before death prescribed in clause 1 Article 48 of law TNBTCNN is the actual costs required, consistent with the nature and the extent of the damage, in line with the average price in the locality at the time, including : rent an emergency victims in health facilities; drug money and money to buy medical equipment; the cost of screening, x-ray, tomography, ultrasound, laboratory tests, surgery, blood transfusions as directed by your doctor; money hospital fees; Next, the protein money fostering rehabilitation for victims as directed by your doctor; the actual cost, necessary before the victims die (if available).
2. Costs for the buried victims die prescribed in clause 2 Article 48 TNBTCNN Law is determined according to the level of the cost of burial, funeral subsidies as defined by the law on social insurance.
3. The person who suffered the damage is done the obligation of support stipulated in paragraph 3 Article 48 of law TNBTCNN and the time to enjoy one's pension is made under the provisions of the law on marriage and family.
Article 12. The physical damage caused by compromised on health 1. Reasonable cost for the remedy and upgrading, restore health and function is lost, the loosening of the victims as stipulated in clause 1 Article 49 of law TNBTCNN includes: the costs are the instructions in paragraph 1 article 11 of this circular and the cost for the fake leg mounting fake fake eyes, hands, buy wheelchairs, scooters, crutches and fix aesthetics and other costs to support or replace part of the lost body function or loosening of the damage (if any).
If the State Agency has paid the entire cost of the damage is not compensated; the case of State bodies have paid part of the costs of the damage compensation remaining costs section.
2. the reasonable cost of compensation and loss of real income caregivers who suffer damage as specified in paragraph 3 Article 49 of law TNBTCNN.
a) victims are compensated only reasonable costs and actual income loss of caregivers who suffer damage if the care that is needed or requested by the medical establishment.
b) The reasonable costs of caregivers who suffer damage during treatment including the money train, travel, car rentals, accommodation according to the average price in the local implementation of the costs (if any).
c) real income lost by carers who suffered damage in the duration of treatment is determined by the provisions of article 46 of law TNBTCNN and follow the instructions in paragraph 2 article 7 of this circular.
3. The victims lose the ability to labor and need regular care is not likely to make manufacturing operations, business services. More affordable for people who regularly take care of the victims lose the ability of labour provisions in clause 4 Article 49 of law TNBTCNN is calculated by the average wage paid to the care of disabled persons in the locality where the victims reside.
Chapter IV PROCEDURE article 13 CLAIMS RESOLUTION. Record and send a claim 1. The profile includes the claim: the claim Application; the original or a copy of the text identifying the person's unlawful behavior on duty; document, other evidence relevant to the claim (if any).
2. The petition must have the main content stipulated in item 2 Article 42 of law TNBTCNN and other content under the form of 1a, 1b attached to this circular.
3. The record of the claim is sent to the responsible agency compensation guidelines in article 6 of this circular.
4. The record of the claim can be submitted directly at the Agency are responsible for compensation or by post. Case records of the claim submitted by post, the date postmarked where posted on the packaging are determined is on send.
Article 14. Accepting the claim application When receipt of claim for damages, the Agency receives the record to check the records. Within 5 working days from the date of receiving the claim records, if the record is a valid claim and the responsibility of their settlement, the agencies have got to handle and report in writing on the application for the acceptance of the claim; case records of the claim is not valid or the incident is not the responsibility of his resolve, or not in the case compensated, expiry of compensation, the Agency received must return the enclosed text records to explain clearly the reasons for the claim to know.
Article 15. The compensation settlement Organization immediately after accepting the petition for compensation, the agency heads are responsible for compensation to the compensation settlement organization representatives, compensation (hereafter referred to as representative) under the provisions of article 6, article 7 of Decree 16/2010/ND-CP dated 3 March, 2010 Government of detailed rules and instructions for a TNBTCNN Act (hereafter abbreviated as no. 16).
Article 16. Verify the loss within 5 working days from the date of accepting the compensation claim, the representative must organize the verification of damage. The verification of the damage was done on the basis of documents and evidence do people claim the offer. In case of need as defined in paragraph 2, paragraph 3 Article 18 of law TNBTCNN, the responsible authority may request the Agency held property valuation, assessment of damage to property, damage assessment on health or opinions of the agencies concerned on the settlement of compensation.
Of time to verify the damage done as prescribed in clause 1 Article 18 of law TNBTCNN.
Article 17. Negotiate the compensation 1. Within 3 working days from the date of the end of the verification of the damage, the representative should conduct negotiations with the victims.
2. The time limit for the composition, location, negotiate, negotiate thereon content follow the provisions in paragraphs 1, 2, 3 and 4 Article 19 of law TNBTCNN and form 2a or 2b attached to this circular.
3. The meeting to negotiate compensation for the damage done in sequence:

a) representatives of the authorities responsible for briefing stated compensation components, reason, purpose of the meeting; popular text, decided to give rise to base compensation; the basis of determining the type of damage and compensation for damages, compensation, how to pay compensation and other issues related to compensation;
b) victims, victims relatives or legal representatives of the victims presented comments on the requests for compensation;
c) Who enforce the service damage presents opinions, his views on the settlement of compensation;
d) the parties discuss, negotiate the settlement of compensation;
DD) representatives of the authorities responsible for briefing compensation sum results to negotiate and end the meeting;
e) minutes of the meeting established 2 a, enough of the signatures of the participants, 1 a vested parties, claim a save in agency compensation.
Article 18. The decision to settle compensation 1. Within 3 working days from the date of the end of the negotiation, the agency responsible for compensation should complete the draft compensation decisions. In case of need, the Agency has the responsibility to compensate can send the draft decision on compensation to get the opinions of the relevant authorities.
Within 10 days from the end of the negotiation, based on the results of verification of the damage, the result of negotiations with the victims or their legal representatives and the opinion of the relevant body (if any), the heads of agencies are responsible for compensation to compensation decisions.
Compensation decisions must have the main content as specified in article 20 paragraph 1 TNBTCNN Law and according to the model No. 3a or 3b attached to this circular.
2. Decide compensation was sent immediately to the victims, the superior authority of the Agency directly responsible for compensation and the duty to enforce the criminal cause damage.
3. compensation decisions in effect after 15 days from the date the victims receive the decision, unless the victims do not agree and Sue off the Court.
Article 19. Transfer the decision to resolve the compensation to the compensation bodies responsible for organizing the transfer of compensation decided compensation according to the procedure specified in article 10, Decree No. 16.
Article 20. Sue asks court to settle compensation for the victims, the victims relatives or legal representatives of the victims have the right to sue the Court requires compensation in the following cases: 1. The victims relatives, victims do not agree with the decision to settle for compensation under the provisions of paragraph 1 to article 22 of law TNBTCNN.
2. Expiry of the decision to settle compensation claims settlement agencies that do not decide compensation according to the provisions in clause 1 Article 22 of law TNBTCNN.
On expiry of the decision to settle for compensation under the provisions of article 22 of law TNBTCNN is identified as the 11th day from the date the agency representative compensation and victims sign a deal.
3. The determination of the court having jurisdiction to settle the claim and the procedure requires the Court to resolve compensation is made according to the provisions of article 23 of law TNBTCNN.
Article 21. Payment of compensation based on the compensation decision was in effect responsible authority's claim or judgment, the decision has force of law courts, the authorities responsible for implementing the compensation to pay compensation to victims as defined in paragraph 4 to article 54 of law TNBTCNN and article 7 circular No. 71/2012/ TTLT-BTC-BTP on 09 may 2012 the Ministry of finance, the Ministry of Justice regulation the estimating, management, use and cost of implementation of the State compensation liability.
Chapter V the STATE ADMINISTRATION on WORK of COMPENSATION Article 22. Responsible for the management of State compensation of 1. The Ministry of public security, the Ministry of defence, the Supreme People's Procuratorate, the Supreme People's Court within the functions, missions, their powers are responsible for the management of State compensation in the criminal enforcement activities in its scope of management; in case of need shall coordinate with each other and coordinated with the Ministry of Justice conducted state management on the work of compensation according to the content of the provisions of article 21 of Decree 16.
2. Cases have arisen in the work of State compensation in the criminal enforcement activities, the Ministry of industry, in collaboration with the Department of Justice to resolve.
Article 23. Identify the authorities responsible for compensation of 1. The identification of the authorities responsible for compensation in the criminal enforcement activities are carried out according to the provisions in clause 1 article 5 of Decree 16.
2. in the event of an inconsistency between the competent bodies of the Agency are responsible for the compensation as follows: a) If there is no unity between the competent bodies within the industry, the heads of the superior bodies of the organs that consider decision.
Within 5 working days from the date of receiving the request in writing of the person suffering the damage, heads the Agency supervisor must review, issued the decision determines the Agency has responsibility for compensation.
b) If there is no unity between the competent agencies in the industry, the heads of the relevant departments coordinate with each other to consider, resolve.
Within 3 working days from the date of the Agency's system for the identification of the authorities responsible for compensation, the Agency chaired is responsible for issuing the documents identify the authorities responsible for compensation and inform the coordination agency said.
Article 24. Statistics, General, reviews the compensation of 1. Periodically 6, and every year, the ministries make statistics, General, reviews the implementation of the work of restitution in the criminal enforcement activities within the Department, the management sent his industry Ministry of Justice to the General, Government reports, specifically: a) the time limit for latch statistics , General report for 6 months is from 1/10 year to 31 March of the year of the report; key deadlines, aggregate statistics for the annual report is from 1/10 of the previous year to 30 September of the year of the report;
b) the time limit for submitting statistical results, General, reviews the report for 6 months is before June 15 of the year of the report and before 15 October of the year of the report with regard to the annual report.
2. The case at the request of the Government, the Commission of the National Assembly, the Parliament, the ministries make statistics, General, reviews the implementation of liability in criminal enforcement operation in its scope of management, sent the Justice Department on request.
Chapter VI ENFORCEMENT PROVISIONS article 25. Effective circular has effect from December 21, 2013.
Article 26. The Organization made in the process of implementation of this circular, if there are problems that need explanation or additional instructions, suggested the report Ministry of public security, the Ministry of Defense, Ministry of Justice, the Supreme People's Procuratorate, the Supreme People's Court to have the explanation, additional instructions promptly.

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