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Circular 01/2010/ttlt-Btp-Btc-Ttcp: Guidelines For Implementation Of The State Compensation Liability In Administrative Management Activities

Original Language Title: Thông tư liên tịch 19/2010/TTLT-BTP-BTC-TTCP: Hướng dẫn thực hiện trách nhiệm bồi thường của Nhà nước trong hoạt động quản lý hành chính

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The MINISTRY OF JUSTICE, Ministry of FINANCE of the GOVERNMENT OMBUDSMAN _ _ _ _ _ _ _ _ _ _ the number 19/2010/TTLT-BTP TTCP-BTC-SOCIALIST REPUBLIC of VIETNAM independence-freedom-happiness _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Hanoi on 26 November 2010, CIRCULAR guide implementation of the State compensation liability in administrative management operation _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ pursuant to the law of the State compensation liability on June 18, 2009;
Pursuant to Decree No. 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;
The Ministry of Justice, Ministry of finance, the Government inspection system for guiding implementation of the State compensation liability in administrative management activities as follows: chapter I DEFINES the LIABILITY of the STATE in ADMINISTRATIVE MANAGEMENT ACTIVITIES article 1. Determining the compensation liability of the State in administrative management activities 1. Compensation liability of the State in administrative management operations only arose when 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 prescribed in article 13 of the law of the State compensation liability (hereinafter referred to as the Act);
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 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 2. 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 as provided by law.
2. The decision to handle accusations of the organ or authority specified by the law.
3. The judgment, the decision of the Court about the case the Administration has legal effect.
Article 3. Determine the scope of The liability determined the scope of liability in some specific cases are as follows: 1. Apply the measures specified in paragraph 2, paragraph 3 and paragraph 4 of article 13 of law is the person on duty has unlawful behavior and cause damage when the decision handling administrative violations , make these measures.
2. the application of taxes, charges and fees prescribed in paragraph 6 of article 13 of law is the person on duty has unlawful behavior and cause damage when performing the following work: a) determine the tax payers, the taxable object;
b) determine the tax base, charges and fees;
c); reduced; complete; relaxation of the debt; tax debt relief, of fees.
3. Application of customs provisions in paragraph 7 of article 13 of law is the person on duty has unlawful behavior and cause damage when performing the following work: a) to receive and register the Customs record;
b) test records; reality check of the goods, means of transport;
c) customs clearance of goods and means of transport.
4. valuable papers such as the license prescribed in clause 5 and clause 11 article 13 of law including: documents, approved, approved; the certificate of practice; certificate and other papers by the competent State authorities granted to individual organisations for them to exercise their rights and obligations under the provisions of the law.
Article 4. Actual damage actual damage is damage that the damage incurred due to unlawful acts of the person on duty. Actual damages include physical damage and damage caused by loss of morale.
1. physical damage compensation responsibility of the State in administrative management activities including: damages due to the property being violated the provisions of article 45 of the law; damage caused by lost or real income decreasing prescribed in article 46 of the law; the physical damage caused by the victims die provisions of article 48 of the law; the physical damage caused by compromised health provisions of article 49 of the law.
2. Damage caused by loss of morale in the State's liability in administrative management activities including: damages due to loss of sense of time being administrative detention, were brought into the school, institution, healing basis prescribed in paragraph 1 to article 47 of the law; damage caused by loss of morale in the case of the victims of death prescribed in paragraph 3 to article 47 of the law; damage caused by loss of spirit in case of compromised health as defined in paragraph 4 to article 47 of the Act.
Chapter II DETERMINATION of DAMAGE COMPENSATION article 5. Damage caused by compromised assets 1. Damage caused by compromised property is determined according to article 45 of the law. 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 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 shall be calculated from the day the money is remitted to the State budget; seized; the implementation of projects; be set to ensure that the competent authorities to the decision on compensation of the Agency are responsible for compensation or the verdict, the decision of the Court.
Article 6. 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 law to be determined on the basis of the average income of 2 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 a) real income of the individuals specified in article 46 of the law 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.
b) Who suffers damage (including cases of dead) to be compensated for lost actual earnings or decreasing their time in custody, was brought into the school, institutions, the basis of healing 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.
Example 1: He worked as A newsman. By being put in the basis of healing should be unlawful in this time he A had no income. His income A before being taken on the basis of healing is not stable but determined his income A in the 3 months before the loss, 1,200,000 respectively 1,000,000 and 1,100,000. He's A real income is defined as the average income level of the adjacent three months before the damage: 1,100,000. In this case, the actual income of A lost and A compensation of actual earnings lost during the period were taken on the basis of healing per month is 1,100,000.
Example 2: Mrs. B makes a legal consulting firm. Mrs. B's income before compromised health is stable, on average each month is 3,000,000 dong. Compromised health, Mrs. B to treatment and in time the company paid for her treatment B 40% of salary is 1,200,000. In this case, the actual income of Mrs B loosening 1,800,000 VND each month she should B be compensated actual earnings decreasing during treatment.
Example 3: Mr. C is public servants have stable monthly income is 1,700,000. Compromised health, Mr. C to treatment and treatment during the Agency still charged full earnings for Mr. c. this case, the actual income of Mr C can't be lost should he not C of compensation funds.
Article 7. Damage due to the loss of the spirit 1. Damage due to loss of sense of time being administrative detention, were brought into the school, institution, healing facility prescribed in clause 1 Article 47 of law 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 average working day of each month.
For example, at the time of issuance of this circular, the general minimum wage by State regulation is 730,000 dong, so a day minimum wage would be: 730,000 VND: 22 = 33,182 contract.
b) on Number administrative custody, were brought into the school, the institution, the basis of healing is determined according to the actual number of days that the compensation of administrative custody, was brought into the school, institutions, the basis of healing.
For example: Mr. A was put on the basis of healing from 01/12/2010 and on 1/3/2011 is out of the base of healing. On 20/3/2011, the competent authorities determined he was not A subject to be measures taken on the basis of healing. In this case, the damage due to the loss of the spirit that he A compensation is determined as follows: the actual number of days taken on the basis of healing is: 31 days of December 2010 + 31 days of 01/2011 + 28 days of the month 02/2011 = 90 days.
The number of days calculated according to the minimum wage salary compensation is: x 2 = 90 days 180 days.
In this example, the amount that A State compensation is: 180 days x 5,972,760 = 33,182 contract.
2. Damage caused by loss of morale in the case of the victims of death prescribed in paragraph 3 to article 47 of the law are defined as follows: a) If the victims died during the administrative detention, were brought into the school, the institution, the basis of healing that is not their own fault or not due to unforeseen events the urgent situation, their relatives are damages due to 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.
b) If the person detained, taken into the school, the institution, the basis of healing the dying during administrative custody, was brought into the school, institutions, the basis of healing 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 the provisions in paragraph 3 to article 47 of the Act.
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 8. 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 the law 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 a physician; money hospital fees; money next protein, fostering health recovery money for victims as directed by a physician; the actual cost, necessary before the victims die (if available).
2. Costs for the buried victims die prescribed in clause 2 Article 48 of the law determined under the funeral allowance pursuant to the social insurance law.
3. compensation payments Only to people that the victims are performing the obligation of support stipulated in paragraph 3 to article 48 of the law if before the administrative detention, were brought into the institution, the basis of healing that victims are made but the support obligation in administrative custody time , were brought into the institution, the basis of healing death. The people who are the victims of support compensation payments. 
Article 9. The physical damage caused by compromised health 1. Reasonable expenses for the cure, recuperation and function is lost, the loosening of the victims as stipulated in clause 1 Article 49 of law include: the cost of being instructed in clause 1 article 8 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 to article 49 of the law.
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 the law and according to the instructions in paragraph 2 article 6 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 paragraph 4 to article 49 of the Act is calculated by the average wage paid to the care of disabled persons in the locality where the victims reside.
Chapter III PROCEDURE of COMPENSATION article 10. Define unlawful behaviors of the person on duty 1. When organizations and individuals that suffered damage due to administrative decisions, administrative acts of the person on duty and wanted to be compensated, the State must implement complaint procedures under the provisions of the law on complaints to request competent person determine the behavior of the person on duty is against the law.
2. Who has the authority to resolve claims is responsible for performing the correct procedure for complaints under the provisions of the law. In the complaint resolution decision must clearly define the behavior of the person on duty is against the law or not unlawful.
Article 11. The record claim claim records include: a Single claim) according to model No. 01a; 01b or 308B attached herewith;
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 2 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 by one of the following forms: a) 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 of March 3, 2010 of 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).
Article 13. The compensation settlement Organization 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 article 14. 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 the Act, the Agency has the responsibility to compensate may require the Agency, organization, property valuation, assessment of damage to property, damage assessment on health or opinions of the agencies concerned on the settlement of compensation.
The verification period of damage is 20 days from the date of accepting the single claim; the case of more complicated, or are verified at multiple locations, then the verification period can last long but not more than 40 days.
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 the code. 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 compensation review, signed the decision addressed compensation. 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 of 18 Thing. 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 the law.
2. Expiry of the decision to settle compensation claims settlement agencies that do not decide compensation according to the provisions of paragraph 1 to article 22 of the law.
On expiry of the decision to settle for compensation under the provisions of article 22 of the Act was identified as the 11th day from the date the agency representative compensation and victims sign a deal.
Article 19. Claim in process of administrative lawsuits start 1. During the initialization process of administrative lawsuits that the petitioner said that unlawful acts of the person on duty caused damage shall have the right to request the competent court to resolve the case the Administration made the settlement of compensation according to the provisions of article 24, article 25 of the law.
2. where the Agency has the responsibility to compensate the involuntary enforcement of judgments, decisions of courts of law has been in force, the victims have the rights to petition for civil enforcement agency enforcement organizations under the provisions of the law of civil enforcement.
Article 20. 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 for the damage under the provisions of Chapter VI of the Act.
Chapter IV article 21 ENFORCEMENT TERMS. Effect 1. This circular has the effect after 45 days from the date of signing.
2. Abolish circular No. 49/2008/TT-BTC on June 12, the Ministry of Finance's 2008 compensation Guide for taxpayers, the customs due to violation of law officers, civil servants, tax officers, customs officer while on duty.
Article 22. Implementation In the process if there are difficulties and obstacles, personal recommendations, the Organization reflecting on the Ministry of Justice to coordinate with the Ministry of finance, research, government inspectors resolve./.
 

KT. DEPUTY FINANCE MINISTER (signed) Do Hoang Anh Tuan KT. JUSTICE MINISTER DEPUTY MINISTER (signed) Ding Trung KT Proceedings. The INSPECTOR GENERAL AS DEPUTY INSPECTOR GENERAL (signed) weight of Tran Duc