Circular 24/2011/ttlt-Btp-Bqp: Guidelines For Implementation Of The State Compensation Liability In Civil Enforcement Activities

Original Language Title: Thông tư liên tịch 24/2011/TTLT-BTP-BQP: Hướng dẫn thực hiện trách nhiệm bồi thường của Nhà nước trong hoạt động thi hành án dân sự

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Pursuant to the law of the State compensation liability on June 18, 2009;

Pursuant to the law enforcement of civil judgement on November 28, 2008;

Pursuant to Decree No. 16/2010/ND-CP of March 2010 the Government detailing and guiding the implementation of some articles of the law on liability of the State, the Ministry of Justice, the Department of Defense unified guidance of the State compensation liability in civil enforcement activities such as the following : chapter I GENERAL PROVISIONS article 1. Scope this circular guides the implementation of the State compensation liability in civil execution: define the liability of the State; procedure for resolving your claim; determine the damages are compensation and responsible reports on the resolution of the claim.

Article 2. The object that applies to this circular is applicable to organizations, individuals suffering damage; the Agency is responsible for compensation in civil enforcement activities according to the provisions of article 4, the decree number 16/2010/ND-CP of March 2010 the Government detailing and guiding the implementation of some articles of the law of the State compensation liability (hereinafter referred to as the decree number 16/2010/ND-CP) , the State administration on work compensation in civil enforcement activities and agencies, organizations, individuals are related to State compensation.

Chapter II DETERMINATION of the STATE COMPENSATION LIABILITY in CIVIL ENFORCEMENT ACTIVITIES Articles 3. Determining State liability in civil enforcement activities 1. The State's liability in case the person on duty a decision or organization enforced decisions about the implementation of the provisions of article 38 of law of State compensation liability (hereinafter referred to as the law of TNBTCNN) only arise when the following conditions are : 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 prescribed in article 38 of the law on TNBTCNN;

c) Have actual damage occurs;

d) causality relationship between actual damage occurred and unlawful behaviour of the person on duty.

2. State liability in cases where the duty is not the decision to or not to organize the implementation of the decision on the implementation of the provisions of article 38 of the law on TNBTCNN only arises when there are enough of the following conditions: a) The conditions specified in paragraph 1 of this article;

b) intentional fault of the person on duty.

3. State compensation for damages not occurred completely the fault of the person suffering 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 4. The text of the State bodies are competent to determine or as the basis for identifying the person on duty has unlawful behavior 1. Complaint resolution decision of the authority under the provisions of article 142 of law enforcement of the law was in effect.

2. The conclusions of the report content authorized under the provisions of article 157 of law enforcement of civil judgments.

3. The judgment, the decision of the competent court has legal effect.

Article 5. Determine the fault of the person on duty 1. In the case of the text of the competent authority specified in article 4 of this circular has determined the fault of the person on duty, the Agency has the responsibility to compensate based on that text to make the settlement of compensation for the victims.

2. In the case of text specified in article 4 of this circular has not yet determined the fault of the person on duty shall be based on the verdict, the decision of the Court of appeal decision, the decision to handle accusations of competent State agencies or materials evidence provided by the litigants, the Agency is responsible for determining compensation of fault of the person on duty on the basis of the application of the provisions in paragraph 2 to article 308 the civil code in 2005.

Article 6. Determine the scope of The liability determined the scope of liability in some specific cases the provisions of article 38 of law TNBTCNN is done as follows: 1. The case out or deliberate decision not to enforce the judgment specified in art. 38 of the law Thing TNBTCNN include : a) the heads of civil enforcement agency decision to enforce the judgment against the law;

b) heads of civil enforcement agencies intentionally did not decide execution as defined in item 1 and item 2 Article 36 of law enforcement of civil judgments.

2. in case of revocation, modification, addition, cancellation of the decision on the implementation of projects provided for in point b paragraph 1 Article 38 of the law on TNBTCNN include: a) the heads of civil enforcement agencies, Executive Member of the decision to revoke, amend, Supplement, cancel the decision on enforcement of the unlawful project;

b) heads of civil enforcement agencies, Executive Member of intentionally not a decision to revoke, amend, Supplement, cancel the decision on execution when the base is revoked, modified, supplemented, suspended the decision on the implementation of projects under the provisions of the law.

3. where the measures ensuring execution specified in point c of paragraph 1 to article 38 of the law on TNBTCNN include: a) Executive Member decision to apply measures to ensure enforcement of the judgement has no legal base or deliberate decision not to apply measures to ensure enforcement of the judgement when the base measures guarantee in case the voltage yourself measures ensuring execution;

b) Executive Member off or deliberately not making a decision to apply measures to ensure enforcement of the judgement in the case of measures ensuring execution at the request of the litigants;

c) where the executor decides to apply measures to ensure enforcement of the judgement requested by litigants that damage is not in the scope of State compensation responsibility.

4. in case of coercive execution specified in point 38 of the Law Article paragraph 1 d TNBTCNN include: a) Executive Member decision coercive execution against the law;

b) Executive Member intentionally not coercive decisions execution when the base is applied coercive measures to enforce the judgment under the provisions of the law.

5. where the enforcement of the decision to apply provisional measures of the Court in VND account 1 TNBTCNN Law of 38 Articles include: a) heads the enforcement decision execution to enforce the decision to apply provisional measures of the Court against the law;

b) heads of civil enforcement agencies intentionally did not enforce the decision to enforce the decision to apply provisional measures of the Court within the time limit prescribed by law;

c) where heads of civil enforcement agency decision execution to enforce the decision to apply provisional measures of the courts with the right decisions that cause damage are not the responsibility of compensation in civil enforcement activities.

6. in case of delayed execution specified in point 38 of the Law Article paragraph 1 e TNBTCNN include: a) the heads of civil enforcement agency decision to postpone enforcement of the judgment against the law;

b) heads of civil enforcement agencies deliberately do not proactively decide to postpone execution when sentencing in one of the cases provided for in paragraph 1 to article 48 of law enforcement of civil judgments or deliberate decision not to postpone execution when received the request of the competent Appeal judgment , decided under the procedure of Cassation, retrial stipulated in item 2 Article 48 of law enforcement projects;

c) where heads of civil enforcement agency decision to postpone enforcement of the judgment under Article 48 paragraph 1 point b law enforcement or civil court at the request of the person who has the right to protest as prescribed in clause 2 Article 48 civil enforcement Act which caused the damage did not belong to the scope of liability in civil enforcement activities.  

7. in case of temporary suspension of execution specified in point 38 of the Law Article paragraph 1 g TNBTCNN include: a) the heads of civil enforcement agency decides to temporarily suspend execution against the law;

b) heads of civil enforcement agencies intentionally did not decide to temporarily suspend execution against the law;

c) where heads of civil enforcement agency decides to temporarily suspend execution when the notice of the Court about the already accepting the petition to commence a bankruptcy procedure for those who must enforce the judgment under the provisions of clause 2 Article 49 of the Civil Enforcement Act which caused the damage did not belong to the scope of liability civil enforcement action.

8. in case of suspension of execution specified in point 38 of the Law Article paragraph 1 g TNBTCNN include: a) the heads of civil enforcement agency decision to suspend enforcement of the judgment against the law;

b) heads of civil enforcement agencies intentionally did not decide to suspend execution when sentencing in the case specified in clause 1 article 50 of law enforcement of civil judgments.

9. in case of continued enforcement of the judgment specified in point h paragraph 1 Article 38 of law TNBTCNN includes the following cases: a) the heads of civil enforcement agency decision continues to enforce the judgment against the law;

b) heads of civil enforcement agencies intentionally did not decide to continue execution when the base, the time limit for deferred execution as defined in paragraph 1, paragraph 2 Article 48 of law enforcement of civil judgments no longer or have received one of the decisions specified in paragraph 3 Article 49 of law enforcement of civil judgments.

10. The organization of the execution or deliberately not held enforcement of the decision provided for in paragraph 1 to article 38 of the law on TNBTCNN include: a) heads execution, Executive Member and the person on duty has other unlawful behavior in the process of organizing the implementation of the decision on the implementation of projects;

b) heads execution, Executive Member and those other duty intentionally does not organize the implementation of the decision on the implementation of projects under the provisions of the law.


Article 7. Actual damage actual damage is damage that the damage incurred due to unlawful behavior of people on duty caused by provisions of Law TNBTCNN and the relevant legislation.

Chapter III DETERMINATION of DAMAGE COMPENSATION article 8. Damage caused by compromised assets 1. Damage caused by compromised property is determined according to article 45 of the law on TNBTCNN. In the case of property being violated is land use, housing, buildings and other assets tied to the ground stroke damage compensation is determined according to the provisions of article 45 of the law TNBTCNN and the provisions of relevant laws.

2. the interest rate calculation period for the sums prescribed in paragraph 4 to article 45 of the law of TNBTCNN is calculated from the date the money is remitted to the State budget; seized; execution until decision resolving the Agency's compensation is responsible for compensation or until there is a verdict, the decision of the Court of law.

Article 9. Damage caused by lost or real income decreasing 1. Damage due to real income lost or loosening of the damage caused by the institutions fact lost income or loosening of the organization specified in article 46 of the law of TNBTCNN is determined on the basis of the average income of two adjacent years before the time of the damage. The Organization's income is determined according to the financial report of the Organization; the absence of financial reporting, organizations can demonstrate actual income is lost or is declined by the documents, other legal evidence under the provisions of the relevant laws.

The case of the Organization was established enough for two years as of the time of the damage, the actual income of the organization is determined on the basis of the average income during the actual operation of the organization.

2. Damage caused by actual income lost or loosening of the individual cases 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.

Chapter IV the AUTHORITIES RESPONSIBLE for RESTITUTION and COMPENSATION PROCEDURES article 10. The Agency is responsible for compensation in civil enforcement activities 1. The identification of the authorities responsible for compensation in civil enforcement activities are carried out according to the provisions of article 4 of Decree 16/2010/ND-CP.

2. where the enforcement agency delivered to the Organization, individuals performing tasks related to the enforcement activities that cause harm to the extent the liability for compensation according to the provisions of the law of the TNBTCNN civil enforcement agencies which are responsible for compensation.

3. In the case of the victims did not identify the authorities responsible for compensation or no unity about the Agency is responsible for determining the compensation bodies responsible for compensation made in accordance with art. 1 Article 23 of Decree number 16/2010/ND-CP.

Article 11. Records claim the victims send 1 record to claim the Agency has responsibility for compensation, including: a Single claim) according to model No. 01a; 01b attached to this circular;

b) copies the text of the State bodies are competent to determine the unlawful behavior of the person on duty;

c) documents and evidence relevant to the claim.

Article 12. Accepting the single claim 1. Within a period of two years from the date of the text the competent authorities determine the unlawful behavior of the person on duty, who claim the claim records submitted to the Agency are responsible for compensation specified in article 4 of Decree 16/2010/ND-CP by using one of the following forms : a) to directly send your claim at the Agency are responsible for compensation;

b) send your claim to the authorities responsible for compensation through the postal system and telecommunications.

2. Upon receipt of a claim, the Agency has the responsibility of compensation must check and determine the validity of the application and the attached documents, papers; case records are incomplete, guide the additional claim.

For the text of the State bodies are competent to determine the unlawful behavior of the person on duty that the claim is not likely to provide the responsible compensation agency responsible for collecting the text there.

3. within 5 working days from the date of receiving the application and the documents are valid, if the claims define the responsibility of his resolve, the Agency received are accepting and notice in writing about accepting the single claim; the case agency accepting for that the case does not settle his responsibility must then return the record and guide the claim sent to the State administration on work of compensation to be determined the Agency has responsibility for compensation as defined in chapter IV of Decree number 16/2010/ND-CP.

Article 13. Representatives made the settlement compensation 1. Immediately after accepting the petition for compensation, the agency heads are responsible for compensation should the decision sent the representative made the settlement of compensation (hereafter referred to as representative) in accordance with article 7 of Decree No. 16/2010/ND-CP sent representatives to be sent immediately to the claim.

2. civil enforcement agency supervisor of civil enforcement agency has the responsibility to compensate representatives made the settlement of compensation in the following cases: a) civil enforcement agencies only have 1 leader and at the same time as the person who caused the damage;

b) civil enforcement agencies only have 1 leader and at the same time as the person concerned of the victims or of the person who caused the damage as specified in paragraph 1 article 7 Decree number 16/2010/ND-CP;

c) leaders of civil enforcement agencies was the cause of the damage and led the rest of the enforcement agencies that do not have sufficient privileges, conditions for representatives.

3. In case the Agency has responsibility for compensation is the enforcement Bureau that no public servants have enough the conditions prescribed in item 2 article 7 Decree number 16/2010/ND-CP, the Executive Member of the Bureau are elected representatives in the resolution of the claim.

Article 14. Verify the loss damage verification is performed according to the provisions of article 18 of law TNBTCNN. 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.

Article 15. Negotiate the compensation within 3 working days from the date of the end of the verification of the damage, the representative should conduct negotiations with the victims.

The time limit for implementation of the negotiated is 30 days from the date of the end of the verification of the damage; the case got more complicated, the time limit may be extended to negotiate more but not more than 45 days.

The composition of negotiation, negotiation venue, content negotiation is done thereon as specified in paragraph 2, paragraph 3 and paragraph 4 of article 19 of law TNBTCNN. Minutes of negotiation made by model No. 2 attached to this circular.

  Article 16. Issued compensation Immediately after the end of the negotiation, the representative must complete the draft decision on compensation to report the agency heads are responsible for compensation.

Based on the results of verification of the damage, negotiate with the victims and the opinion of the relevant body (if any), the heads of agencies are responsible for issuing compensation compensation decisions.  

 The case of civil enforcement agency supervisor of civil enforcement agency has the responsibility to compensate representatives perform the compensation prescribed in clause 2 article 13 this circular, the representatives in the resolution of claims issued compensation decisions. Compensation decisions made by model No. 3 attached to this circular.

Article 17. Transfer the compensation decision the representative organization of the transfer of the compensation settlement decision under the procedure provided for in article 10, Decree No. 16/2010/ND-CP.

 Article 18. Sue asked the Court to resolve the compensation of the victims have the right to sue the Court requested compensation in the following cases: 1. The 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 the law of TNBTCNN is identified as the 11th day from the date the agency representative compensation and the victims signed the minutes of the end of the negotiation.

Article 19. Payment of compensation


1. within 10 working days from the date of the judgment, decided to effect compensation law, the Agency has the responsibility of compensation must immediately transfer the profile recommended compensation to the State administration of civil enforcement at central to implement procedures to allocate , pay compensation to the victims, namely: a) in the case of responsible agency compensation is the enforcement agency by the Department of Justice manages to transfer the compensation proposal to the profile Of the enforcement Bureau-Ministry of Justice;

b) in the case of responsible agency compensation is the enforcement agency because the Defense Department Manager to transfer the profile recommended compensation to civil enforcement Bureau-Ministry of defence.

2. Procedures, pay compensation for the damage done under the provisions of Chapter VI of the TNBTCNN Law and the relevant legislation.

Article 20. The responsibility to report on the settlement of compensation 1. The Agency is responsible for compensation in civil enforcement activities must report on the settlement of compensation according to the provisions of article 12 of Decree 16/2010/ND-CP.

2. In the process of implementing the settlement of compensation, the Agency has the responsibility of compensation in civil enforcement activities to report civil enforcement Bureau and the Bureau of State compensation of the following content to serve state management on compensation: a) accepting the single claim;

b) issued the decision on compensation;

c) victims to sue ask Court for compensation;

d) implement procedures to pay compensation.

Chapter V, article 21 ENFORCEMENT TERMS. Effective enforcement of this circular effect since April 30, 2012 Article 22. Apply transitional provisions regarding compensation in civil enforcement activities 1. The case compensated in civil enforcement activities under the provisions of Decree No. 47/CP on May 3, 1997 by the Government on the compensation of damage caused by public servants, government officials, the Agency's authority to conduct the proceedings caused, that the damage incurred in the period from January 01 2008 to November 1st in January 2010 and yet claim, shall apply the law of the TNBTCNN and the text to resolve the enforcement Guide.

2. The case compensated in civil enforcement activities under the provisions of Decree No. 47/CP on May 3, 1997 by the Government on the compensation of damage caused by public servants, government officials, the Agency's authority to conduct the proceedings cause , that come before 1 January 2010 in the victims have a claim but have not been accepting, then apply the law TNBTCNN and the text to resolve the enforcement Guide.

Article 23. Responsible for enforcing and implementation 1. The Ministry of Justice, Ministry of defence, the body responsible for compensation, the Agency, the organization concerned is responsible for the implementation of this circular.

2. During the implementation process if there are difficulties and obstacles, personal recommendations, the Organization reflecting on the Ministry of Justice to coordinate with the Department of defense research, resolve./.