The Decree 16/2010/nd-Cp: Detailing And Guiding The Implementation Of Some Articles Of The Law Of The State Compensation Liability

Original Language Title: Nghị định 16/2010/NĐ-CP: Quy định chi tiết và hướng dẫn thi hành một số điều của Luật Trách nhiệm bồi thường của Nhà nước

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The DECREE detailing and guiding the implementation of some articles of the law of the State compensation liability _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ the GOVERNMENT pursuant to the law on organization of the Government of 25 December 2001;

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

Considering the recommendation of the Minister of Justice.

DECREE: chapter I GENERAL PROVISIONS article 1. Scope of this Decree, detailing and guiding the implementation of some articles of the law on the liability of the State for compensation at the Agency are responsible for compensation and liability to refund of the duty of the administrative, management and enforcement proceedings; the State administration on work compensation in administrative management and execution.

Article 2. Determine the State's liability 1. State compensation only for the case of damages that are specified in the scope of the law of the State compensation liability when there is enough bases prescribed in clause 1 and clause 2 article 6 of law of State compensation responsibility.

2. the State does not compensate for the damage caused by unforeseen events, urgent situation in the following cases: a) the damage occurred in an objective, could not foresee and could not overcome despite the person on duty has to apply all necessary measures and capabilities allow;

b) damage occurs in the condition because the person on duty wanted to avoid a risk are actually directly threatening the interests of the State, the collective, the rights, legitimate interests of himself or of others that no longer other way is to have the action caused a smaller damage damage need to stop;

c) damage caused by unforeseen events, other urgent situation under the provisions of the law.

Chapter II CLAIMS RESOLUTION BODY RESPONSIBLE FOR COMPENSATION article 3. The Agency is responsible for compensation in the administrative management agency responsible for compensation in the administrative management activities specified in clause 1 article 14 the law of the State compensation liability is determined as follows: 1. in the case of the duty officer is the damage caused civil servants of the Ministry, ministerial-level agencies, government agencies, the Agency is responsible for the compensation, ministerial-level agencies, government agencies, except in the case specified in clause 2 of this Thing.

2. in the case of duty caused damage is the servant of the Directorate, the Department, other units have legal personality, have your own account directly, ministerial-level agencies, government agencies, the Agency has the responsibility to compensate.

3. in the case of duty caused damage is a member of people's Committee of the provincial people's Committee is the provincial agency responsible for compensation, except in the case specified in clause 4 of this Article.

4. in the case of duty caused damage by the professional body affiliated to the provincial people's Committee as stipulated in Decree No. 13/2008/ND-CP DATED April 2, 2008 Government's regulation organization of specialized agencies in the provincial people's Committee , central cities and other agencies affiliated to the provincial people's Committee directly manages the Agency has responsibility for compensation.

5. in the case of duty caused damage is a member of the people's Committee at district level and the person on duty due to the specialized agencies affiliated to the people's committees at district level to directly manage the responsible agency is the Compensation Committee at district level.

6. in the case of duty caused damage is a member of people's Committee of social or public officers granted the township-level people's committees of communes is responsible for agency compensation.

7. other State bodies according to the decision of the State administration on work of compensation authorized under the provisions of this Decree.

Article 4. The Agency is responsible for compensation in civil enforcement activities the Agency has responsibility for compensation in civil enforcement activities specified in clause 2 Article 40 of law of State compensation liability is determined as follows: 1. in case the person on duty that cause damage are public officials of the General Directorate of civil enforcement, the agency responsible for compensation usually the General Department for civil enforcement.

2. where the person on duty causing damages is the servant of the enforcement Bureau of the Provincial Directorate of execution the Department of Defense, the Agency has the responsibility to compensate the enforcement Bureau's provincial Department of execution of defence.

3. where the duty causing damages is the servant of the enforcement Bureau district level, the district level court enforcement bodies responsible for compensation is the enforcement Bureau district level, district level execution.

Article 5. Identify the authorities responsible for compensation of 1. Identify the authorities responsible for the administrative management and execution.

The identification of the authorities responsible for compensation in the administrative and management activities is done according to the provisions of article 14 and Article 40 of law of State compensation responsibility and article 3, article 4 of this Decree.

In the case of victims not identified bodies are responsible for compensation or no unity about the Agency are responsible for compensation of the victims have the right to ask State regulators claim jurisdiction under the provisions of chapter IV of this Decree determines the Agency has responsibility for compensation according to the following procedure : a) cases the victims do not identify the authorities responsible for the compensation within 5 working days from the date of receiving the request in writing of the person suffering the damage, State regulators claim must identify in writing the Agency has the responsibility for compensation;

b) where there is no unity on the authorities responsible for compensation, the time limit for issuing the documents identify the authorities responsible of compensation can be long but not more than 15 days from the date of receiving the written request of the person who suffered the damage. The identification of the authorities responsible for compensation in cases where there is no unity on the authorities responsible for compensation are conducted as follows:-at the request of the victims, the State Agency on compensation, in collaboration with relevant agencies in causing damage to identify the authorities responsible for compensation;

-In case there is no unity on the identification of the authorities responsible for the excesses, the State administration of compensation decided a number of bodies in the relevant agency is the agency responsible for compensation.

c) text identifies the authorities responsible for compensation must be submitted immediately to the victims and the authorities responsible for compensation to make.

2. Identify the authorities responsible for compensation in the proceedings a) the identification of the authorities responsible for compensation in the proceedings to be conducted as specified in articles 29, 30, 31, 32 and 33 of law of State compensation responsibility.

b) in the case of the victims did not identify the authorities responsible for compensation or no unity about the Agency are responsible for compensation of the victims have the right to request the competent authorities determine the responsible agency for compensation under the guidance of the Supreme People's Court , The Supreme People's Procuratorate, Ministry of public security, the Ministry of defence and the Ministry of Justice.

Article 6. The duties and powers of the agency heads are responsible for compensation in the process of compensation heads have responsibility for compensation is responsible before the law for the settlement of compensation and have the tasks and powers of the following: 1. Organize the settlement of compensation according to the procedure defined in article 9 of this Decree;

2. Representatives made the settlement of compensation;

3. Guide, directing the representative made the settlement of compensation in accordance with the provisions of the law;

4. Report on the settlement of compensation according to the provisions of article 12 of this Decree;

5. Provide the decisions related to the settlement of compensation to the person on duty has to cause damage;

6. Perform the duties, other rights prescribed by law.

Article 7. 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).

The case agency heads is the person on duty has caused the damage or the wife (or husband), grandfather, grandmother, grandfather, grandmother, father, mother, father, foster mother (wife or husband-party party), child, adopted child, brother, siblings (wife or husband-party party), grandson, grandson of the person on duty has caused the damage or the victims (hereinafter as the person concerned), the collective Agency leaders discuss reunification, elections to a representative head responsible for the settlement of compensation.

The case Agency has the responsibility to compensate operating under the collective mode of collective decision-making bodies the representatives.

2. The representative must have the following conditions: a) is the leading cadres level rooms or equivalent;

b) Have experience in the industry, the field of liability indemnity;

c) not the person concerned of the person on duty has caused the damage or the victims.

Article 8. The duties and powers of the representative responsible to the representative agency heads responsible for restitution of the compensation and have the tasks and powers of the following: 1. damage verification organization according to the provisions of article 18 of law of State compensation responsibility;

2. Make the negotiation with the victims on the compensation prescribed in article 19 of law of State compensation responsibility;


3. Report the heads of the verification results and damage results to negotiate;

4. Prepare draft decisions to resolve compensation;

5. Perform other tasks related to the settlement of compensation according to the assignment of agency heads.

Article 9. The compensation settlement procedures at the Agency are responsible for compensation of 1. Within 5 working days from the date of accepting the compensation claim, the agency responsible for compensation should conduct the verification of damage to make determining the levels of compensation under the provisions of article 18 of law of State compensation responsibility.

2. within 10 working days from the date of the end of the verification of the damage, the agency responsible for compensation should conduct negotiations with the victims as stipulated in article 19 of law of State compensation responsibility.

3. 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.

4. Based on the results of verification of the damage, negotiate with the victims and the opinion of the relevant body (if any), the agency responsible for issuing compensation settled compensation as specified in article 20 of law of State compensation responsibility and responsible before the law for his decision.

5. When deciding compensation effect, the Agency has the responsibility to make compensation procedures and pay compensation as specified in article 54 of law of State compensation responsibility.

Article 10. Made the transfer decision settling compensation to victims 1. The transfer decisions to resolve the compensation for the damage caused by one of the following people: a) the representatives of the authorities responsible for compensation;

b) represented the people's Committee granted a personal loss to place of residence, the Organization damage based, in the case of delivery of the decision to settle claims through social people's Committee;

c) others by law.

2. The procedure of transferring the compensation decision a) Who made the transfer are directly transferred to decide compensation for victims. The victims have to subscribe to the minutes or the shared delivery of compensation decisions. October newsletter of the victims are counted as the date of the decision on compensation.

b) in the case of the victims is absent then decide compensation can be given to relatives to have sufficient capacity for civil acts the same residence with them. Relatives of the victims have to subscribe to the minutes or the shared delivery of compensation decisions. June Newsletter of relatives at the same residence as the day the victims get compensation decisions.

In case the victims had no relatives have full capacity for civil acts the same residence or have but they refused to accept the households decide compensation then could transfer to decide compensation through social committees where victims reside.

In the case of the transfer to decide compensation through other people who made the transfer to set the minutes clearly the victims of absence, decided to settle for compensation has been given to who; the reason; delivery date and time; the relationship between the recipient households with victims; committed to immediate delivery hand decide compensation for victims. The minutes are signed by the person receiving the moving decide compensation and who made the transfer decision on compensation, the witness.

3. In the case of victims unknown absence time of return or unknown address, it made the transfer decision on compensation to set the minutes about the failed delivery. The minutes must be signed by the person who provided the information about the victims.

4. In the case of the victims refused to accept the decision on compensation, the person making the transfer must set the minutes which stated the reason for rejection, confirmed by the locality or the Chief people's Committee, the communes, wards and towns about the people that refused to accept the compensation decision.

Article 11. Procedure of return of assets in the process of resolving claims, if there's a base return of assets according to the provisions of article 50 of the law on State liability, the Agency has the responsibility to compensate the organization returned the assets according to the following procedure: 1. within 5 working days from the date of seizure, detention decisions, levy, seizure was cancelled, the Agency made decisions that have the responsibility to inform victims about the return of the property. In the content must be clearly informed of the place, the time to return the property.

2. The return of the property was conducted at Headquarters had decided to confiscate, detain, levy, seizure of property or where are the preservation of the property.

All costs for the transport, Assembly, restore the original status of the property by the Agency had decided to confiscate, detain, levy, seizure.

3. When conducting the return of property, public servants are entrusted to conduct the asset returns are responsible for asking the victims or the person who suffered damage to property received authorization to produce the proof of the seized assets, custody, levy , confiscated or who was who authorized it.

4. Civil servants are assigned to accomplish the return of assets requires the recipient to check the number, volume and other features of the property under the presence of the storekeepers where preservation of the property.

5. The return of the property must be made in the minutes signed by the person who received the property, agency representatives had decided to confiscate, detain, levy, seizure of property, civil servants are assigned to accomplish the return of property and store keeper where preservation of the property.

Article 12. The responsibility to report on the settlement of compensation 1. In the process of implementing the compensation settlement, bodies responsible for compensation in the administrative and management activities execution must report to the superior state agency directly about the content: 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.

Attached to the report must have a copy of the documents relevant to the resolution of the claim.

2. where the responsible authority is The compensation, ministerial-level agencies, government agencies and provincial people's committees shall report on the settlement of compensation according to the provisions in clause 1 of this is sent to the Ministry of Justice.

3. The authorities responsible for compensation in the proceedings must report the competent State agencies regarding compensation under the guidance of the Supreme People's Court, the Supreme People's Procuratorate, Ministry of public security, the Ministry of defence and the Ministry of Justice.

4. In addition to the duties specified in the paragraph 1, 2 and 3 of this Article, upon request of the State administration on work of compensation have the authority, the agency responsible for compensation should timely report on the settlement of compensation to serve state management on compensation.

Chapter III LIABILITY of the REFUND on DUTY article 13. Council to consider the liability repaid 1. As soon as done to pay compensation, the agency heads are responsible for compensation to the decision establishing the Council consider refund liability (hereinafter referred to as the Council) as specified in clause 1 Article 58 of law of State compensation responsibility.

2. The composition of the Council include: a) the President of the Council is the head of the agency responsible for compensation;

b) Union representative body responsible for compensation;

c) heads the direct management of the unit on duty had caused the damage;

d) who is in charge of financial affairs and accounting of the Agency are responsible for compensation;

DD) some experts on economics, technology and legal related.

The case has many people on duty in various agencies together to cause damage, the representatives of these bodies to join the Council.

Participants are not be the relevance of the person on duty has caused the damage or of victims as defined in clause 1 article 7 of this Decree.

Article 14. The duties and powers of the Board the Board has the following powers, duties: 1. To consider, assess the extent of the damage; the degree of fault of the person on duty has to cause damage;

2. Determine the economic terms of the person on duty has to cause damage;

3. Recommendations to the heads of agencies are responsible for repayment of compensation and method;

4. The Council dissolved itself after the completion of the task.

Article 15. The working methods of the Council 1. The Council meeting only when there are from 2/3 of the total members of the Board are present.

2. The Council works according to the principle of collective discussion and decision by the majority. In the process of discussion and decision, the members of the Board must objectively, democracy and compliance with the provisions of the law.

3. The recommendations on the level of the refund and the refund method is done by secret ballot and according to the principle of the majority of the Board members are present.

The case of voting is the returned peer and method will by Chairman of the Council decision.

4. The minutes of the meeting of the Council must be reviewed, through Council and President of the Council.

5. where necessary, the Council can invite the person on duty has caused damage to attend meetings of the Council.

Article 16. Determine the level of reimbursement


Determining the level of reimbursement to be made according to the provisions of paragraph 1 to article 57 of law of State compensation responsibility and according to the following principles: 1. where the person on duty has the fault that caused the damage, but not yet to the point of being blind to criminal then, the Agency has the responsibility of compensation based on the extent of the damage caused, the economic condition of the people to decide they have to repay a certain sum of money, but must not exceed 36 months the salary of that person at the time of the decision.

The case of the person on duty has the fault causing the damage that being blind for criminal liability due to unlawful acts causing damage which they must repay according to the provisions of article 18 of the Decree.

2. where the person on duty has an error unintentionally cause harm, the Agency has the responsibility of compensation based on the extent of the damage caused, the economic condition of the people to decide they have to repay a certain sum of money, but must not exceed 11 months of that person at the time of the decision , except as prescribed in clause 2 Article 56 of law of State compensation responsibility.

Article 17. Decision to reimburse 1. Based on the recommendations of the Council, who has the authority under the provisions of article 59 of law responsible for the excesses of the State issuing the refund decision.

2. In case the authority issued the refund decision had other ideas with the recommendations of the Council shall have the right to decide and take responsibility before the law about that decision.

Article 18. Determine responsibility in case of refund on duty being prejudice criminal responsibility 1. The case of the person on duty has the fault causing the damage that being blind for criminal liability due to unlawful acts causing damage which they must refund the entire amount that the State was compensated for the damage according to the decision of the Court has jurisdiction to resolve the criminal case.

2. the responsible authority must ask the Court to determine the responsibility of compensation, reimbursement of the accused is the person on duty has caused damage as defined in article 28 of the Penal Code criminal proceedings to repay the money that the State has compensated for the loss.

Article 19. Collecting, filing, management and use of money repaid 1. Who has the obligation to make repayment on time, the level and the method stated in the refund decision.

2. in case of refund liability is determined according to the provisions of Article 18 paragraph 1 of this Decree shall apply to civil judgment enforcement procedures to collect the money repaid.

3. the responsible authority shall indemnify and fully pay the whole amount, promptly returned to the State budget.

Article 20. Handle the duty intentionally does not perform the obligation to repay 1. Who is obliged to reimburse the agencies responsible for compensation to the third returns that deliberately does not make the repayment obligation according to the provisions of the law.

2. where the person is obliged to refund was transferred to other authorities within the State apparatus, the State agency that has the responsibility to urge the implementation of the obligation to refund and decision-making methods of handling as defined in paragraph 1 of this article.

3. where the person is obliged to refund no longer working in State agencies, the Agency has the responsibility of compensation must take measures to recover the amounts repaid in accordance with the law.

Chapter IV ADMINISTRATION of COMPENSATION article 21. The content of State management compensation 1. Issued under the authority or the State Agency has the authority to modify, supplement or enact new legal text about the State's liability.

2. Common Law propaganda of the State compensation liability and documents guiding the implementation of competent State agencies.

3. the responsible authority's Guide to compensation made the resolution of the claim.

4. Fostering professional skills, compensation for the officers to perform compensation.

5. Identify the authorities responsible for compensation in the case of the victims request or do not have the unity of bodies responsible for compensation.

6. Monitoring, testing, inspection of the settlement of compensation.

7. track, urging the payment of compensation and repayment responsibilities.

8. Complaints, accusations and handle breach of the laws on the State's liability.

9. Statistics, summarizing, evaluating the implementation of the State compensation liability.

Article 22. The responsibility of the Ministry of Justice 1. The unified Government to manage state on the compensation work in administrative management, execution and task, the following powers: a) issued under the authority or the Government amends, supplements or enact new legal text about the compensation responsibility of the State;

b) guidance to resolve compensation;

c) answers to the implementation of the law on the liability of the State;

d) identifies the authorities responsible for compensation in case of damage that required or no unity about the responsibility of compensation between the ministries, ministerial-level agencies, provincial people's Committee according to the procedure specified in point b of paragraph 1 of article 5 of this Decree;

DD) monitoring, testing, inspection and process violates the law on the liability of the State within the country;

e) through the implementation of the tasks of the State administration on work of compensation, timely detect these weaknesses, limitations on the sideline the way work, level of experience, officer, servant to petition with the competent State agencies of the remedy;

g) periodic six-month and annual statistics, summarizing, evaluating the compensation scope in the country, the Government reports.

2. Coordination with the authorized State bodies performing State management on work in the compensation proceedings and operations have the following duties and powers: a) in coordination with the Supreme People's Court, the Supreme People's Procuratorate and other relevant agency Guide to settling compensation in the proceedings and activities of State management on work Active compensation in the proceedings;

b) perform management duties of State compensation in the proceedings in accordance with the law;

c) annual synthesis of the work of the Court activity in the compensation report, the Government and the competent State bodies.

3. Within the scope of the functions, duties and powers, the Ministry of Justice conducted state management on the work of compensation according to the provisions in clause 1, 2, 3, 4, 6, 7 and 8 article 21 and Article 23 paragraph 1 point a of this Decree;

Article 23. The responsibility of ministries, ministerial agencies 1. Ministries, ministerial-level agencies within the functions, duties and powers of his own, performing State management on the work of compensation according to the provisions in clause 1, 2, 3, 4, 6, 7 and 8 article 21 of this Decree and has the following duties and powers: a) identifies the authorities responsible for compensation in case of damage or no requirement the consistency of the compensation responsibilities among agencies in its scope of management according to the procedures specified in point b of paragraph 1 of article 5 of this Decree;

b) in coordination with the Ministry of justice the task of governance of compensation;

c) six-month periodic and annual statistics, summarizing, evaluating the implementation of compensation in its scope of management, sent to the Justice Ministry, the Government reports.

2. legal organization under the Ministry, ministerial-level agencies, staff help Ministers, heads of ministerial agencies perform management duties of State compensation prescribed in this article.

Article 24. The responsibility of the provincial people's Committee 1. The provincial people's Committee to implement state management on the work of local compensation and have the tasks and powers of the following: a) to the extent the functions, duties and powers of his own, performing State management on the work of compensation as defined in clause 2, 3 , 4, 6, 7 and 8 article 21 of this Decree;

b) identifies the authorities responsible for compensation in the case of the victims request or do not have the consistency of liability between the professional bodies in the provincial people's committees and the people's committees at district level in its local management under the procedure specified in point b of paragraph 1 of article 5 of this Decree;

c) in collaboration with the Ministry of justice the task of governance of compensation;

d) periodic six-month and annual statistics, summarizing, evaluating the implementation of compensation in its scope of management, sent to the Justice Ministry, the Government reports.

2. the Chief of the Justice Department, the provincial people's Committee to help implement state management task on work within local compensation prescribed in this article.

Article 25. The responsibility of the specialized agencies in provincial people Committee 1. The track, urging, examine the compensation responsibility of themselves.

2. In coordination with the Justice Department in the General staff, to help the provincial people's Committee in implementing the governance of compensation work locally.

3. Periodic six-month and annual statistics, summarizing, evaluating the implementation of compensation in its scope of management, the Department of Justice submitted to the General People's Committee report, provincial level.

Article 26. The responsibility of the people's Committee of the district level people's committees at district level in the range of functions, duties and powers of his own, performing State management on the work of compensation as defined in clause 2, 3, 6, 7 and 8 article 21 of this Decree and has the task of , the following powers: 1. Identify the authorities responsible for compensation in the case of the victims request or do not have the consistency of liability between the unit due to the people's committees at district level to directly manage and the people's Committee in the local level by themselves, according to the procedure specified in point b of paragraph 1 of article 5 of this Decree;


2. In coordination with the Department of Justice in implementing State management duties of local compensation work;

3. Periodic six-month and annual statistics, summarizing, evaluating the implementation of compensation in its scope of management, the Department of Justice submitted to the General People's Committee report, provincial level.

Article 27. Financial guarantee for State management on compensation and compensation 1. The compensation funds in the scope of responsibility of State compensation was secured from the central budget and local budget according to the provisions of Chapter VI of the law of the State compensation liability.

2. secured funding for the management of the State and the resolution of the claim secured by the State budget within estimated costs of activities of agencies, organizations make managing or resolving State compensation under the provisions of the law on the State budget.

3. The Ministry of finance, in cooperation with the Department of Justice guide to the estimating, management and use of funds from the State budget for the management of State compensation and compensation work.

Chapter V PROVISIONS Enacted 28. Enforceable and transitional provisions 1. The Decree has effect as from 20 April 2010.

2. Do not apply the rules on the liability of the refund on duty in chapter III of this Decree to resolve the refund for the applicable procedure for compensation under the provisions of Decree No. 47/CP on May 3, 1997 by the Government on the compensation of damage caused by public servants , State officials, the Agency's authority to conduct the proceedings.

Article 29. Responsibility 1. The Ministers, heads of ministerial agencies, heads of government agencies, the Chairman of the provincial people's Committee, the central cities is responsible for the implementation of this Decree.

2. The Minister of Justice shall, within the scope of their powers, in coordination with the ministries concerned regulation details, guide the implementation of the article, the account assigned in this Decree in order to meet the requirements of management of State compensation.