Circular 1/2004/ttlt-Tandtc-Vksndtc-Bca-Btp-Bqp: About Guiding The Implementation Of Some Provisions Of The Resolution No. 388/nq-Ubtvqh11 On 17/3/2003 Regarding The Compensation For The Suffering Caused By Crime Lo ...

Original Language Title: Thông tư liên tịch 01/2004/TTLT-VKSNDTC-BCA-TANDTC-BTP-BQP: Về việc hướng dẫn thi hành một số quy định của Nghị quyết số 388/NQ-UBTVQH11 ngày 17/3/2003 về bồi thường thiệt hại cho người bị oan do ngườ...

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CIRCULAR guiding the implementation of some provisions of the resolution No. 388/NQ-UBTVQH11 on 17/3/2003 of the National Assembly Committee on compensation for the damage suffered by the oan competent in criminal activities perpetrated on 17/3/2003, the Standing Committee of the National Assembly adopted the resolution No. 388/NQ-UBTVQH11 of compensation for people who were falsely attributed authority in criminal activity caused (hereafter abbreviated as resolution No. 388);
To the correct and uniform enforcement of the provisions of the aforementioned resolution, the Supreme People's Procuratorate, Ministry of public security, the Supreme People's Court, the Ministry of Justice, Ministry of defence, the Ministry of finance to guide a unified score as follows: i. GENERAL PROVISIONS 1. The case compensated for damage article 1 of resolution No. 388 specifies the case compensated for damage, however when the enforcement of the provisions of this needed attention: 1.1. The custody provisions of art. 1 article 1 of resolution No. 388 to compensation of damage when they do not carry any violations of the law and have the decision of competent bodies active in criminal proceedings to cancel the decision of custody.
Example 1: district public security Nguyen Van custody T A and 8 other people in the service of gambling at home c. Through investigation had determined at the time A to C to repay home and then detained, should investigating authorities had decided to cancel A custody decision. In this case, Nair A compensation for damages.
Example 2: border guard district 56 A Rumor caught 10 Vietnam people are shipping goods across the border illegally from China on Vietnam and ordered their detention. Through the investigation to determine the value of the goods not to be prejudice to criminal responsibility, so cancelled order custody to handle them administratively. In this case they've had violations of the law (unlawful carriage of goods across borders), should not be compensated for damage.
1.2. People with detention which have the decisions of the competent bodies active in criminal proceedings to cancel the detention decision because that person does not make the offence or who had finished or Executive are criminal prison term, life imprisonment, was sentenced to the death penalty which has the judgment the decision of the competent court determines that the person does not make the offence shall be compensated for damage.
1.3. The prosecution, prosecution, trial, if in the process of conducting criminal proceedings not detained, not detention which have judgments, decisions of competent bodies active in criminal proceedings determine they do not carry the offense, shall be compensated for damage.
1.4. Who in the case prescribed in clause 1 article 1 of resolution No. 388 if any seized property, custody, levy, seizure that damage shall be compensated for damages under the provisions of resolution No. 388. With regard to custody, asset seizure, levy, seizure of others not in the above mentioned case, did not resolve the compensation according to resolution No. 388 that are solved according to the General procedure.
2. The case compensated the damage The case compensated damage is regulated in article 2 of resolution No. 388; Note that the following specific cases also in the case are not compensation: 2.1. The prosecution, the prosecution in criminal cases are prosecuted at the request of the victim, but the case was suspended because the prosecution has withdrawn the request before the trial at first instance, except in cases of violations of the law have not yet constitute offences;
2.2. The prosecution, the prosecution, the trial is properly with legal documents at the time of prosecution, prosecution, trial, but now under the new legal text was issued and in effect after the prosecution, prosecution, hearing that they are not subject to criminal liability;
2.3. The prosecution, prosecution, hearing about more guilty in the same case, after which a decision of the competent authorities in criminal activities identified that person committed a crime, and despite the other crimes they weren't done;
2.4. The violations of the law, the offence were detained, prosecuted, accused of detention, prosecution, trial, execution of that decision, the judgment of the competent bodies active in criminal proceedings to cancel the decision, that judgment merely because based on the conclusions of the forensics Board is at the time of implementation violations of the law, the offence that the person has no capacity for criminal responsibility.
 
II. DETERMINE The DAMAGES And COMPENSATION Of DAMAGE 1. Damage due to the loss of the spirit of 1.1. When determining the damage caused by the loss of the spirit for the people were falsely detained, detention, penalty or imprisonment in foreign notes: a specific number of days) must be oan for oan since has decided to prosecute accused until judgment day there the decision of the competent authorities in criminal activities identified that person not make the offence, which should determine the number of days the custody, detention, imprisonment and the penalty of the day at foreign (including those on custody before a decision is made to prosecute accused). After you determine the number of days the custody, detention, imprisonment and the penalty of the day be in Foreign Affairs, pursuant to paragraph 1 and paragraph 3 article 5 of resolution No. 388 to calculate the number of days calculated according to the minimum wage salary that people were falsely be compensated.
For example, on 01/12/2003 M detained and prosecuted accused; expiry of the custody 3 days continued detention. Day 4/3/2004 M. On 20/3/2004 investigating authorities decide to suspend the investigation with respect to M with the reason M not taken offence. In this case, specify the number of days that M be compensated by being falsely as follows:-the number of days detained, the detention is: 31 days of December 2003 + 31 days of January 2004 + 29 days of February 2004 = 91 days.
-The number of days not custody, detention (bail) is: 20 days (from November 1st to March 20th, 2004).
-The number of days calculated according to the minimum wage salary compensation is: (on 91 x 3) + 20 days = 293 days.
b) a day minimum wage calculated according to the general minimum wage by State regulations at the time the compensation was determined by taking the minimum wage prescribed by the State at the time the compensation divided by 22 is the number of average working day of each month.
For example, at the time of issuance of this circular proceed to resolve the compensation, the general minimum wage by State regulation is 290,000 dong, so a day minimum wage would be: 290,000 VND: 22 = 13,181.
1.2. When settling the compensation offset an amount of common sense in the case of people being falsely death notes: a) Just resolve the compensation to offset an amount of common sense if people were falsely detained during the death, detention, imprisonment sentence which is not their own fault or due to unforeseen events.

b) funds make up about three-hundred and sixty months of spiritual salary calculated according to the general minimum wage by State regulations at the time the compensation settlement as compensation for people who have a close relative with people were dead including oan: wife, husband, father, mother, father , foster mother, child, adopted child, who directly cultivates the Vietnamization, does not depend on the number of people is compensating mentally more or less and hold time, the detention, the penalty is imprisonment. In this case don't count in damages due to the loss of the spirit according to the provisions of paragraph 1 and paragraph 3 article 5 of resolution No. 388 and follow the instructions in subsection 1.1 category 1.
c) in the case of people being falsely died in custody, the time of detention, the penalty of jail that their fault or due to unforeseen events, the people who have a relative, close to people being falsely include: wife, husband, father, mother, father, foster mother, the offspring , adopted son, who directly cultivates the Vietnamization was not a general compensation money to offset about 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 the Vietnamization was compensation for damage due to the loss of the spirit according to the provisions of paragraph 1 and paragraph 3 article 5 of resolution No. 388 and follow the instructions in subsection 1.1 category 1.
1.3. The damages due to the loss of spirit damage compensation is to be independent of the damage specified in articles 6, 7, 8 and 9 of resolution No. 388.
2. physical damage 2.1. Reasonable costs specified in the paragraph 1, 2 and article 6 1, 2 article 7 of resolution No. 388 is actual costs needed, consistent with the nature and the extent of the damage, in line with the average price in the locality at the time of the genus, namely: a) the reasonable expenses for the cure fostering, caring person with oan before death prescribed in clause 1 article 6 of resolution No. 388 include: rent an emergency crime sufferers 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 buying supplements, protein, money fostering rehabilitation for people suffering from undeserved reputation as directed by a physician; the actual cost, necessary before people were dead matter (if any).
b) reasonable costs for the buried people were dead, falsely prescribed in clause 2 article 6 of resolution No. 388 include: cost of buying coffins, flowers, incense, candles, shroud, hearse rental and other expenses for buried or cremated people were killed according to common crime. Don't accept claim costs religious, worshipping, eating, drinking, built the tombs, strafed the grave ... c) reasonable costs for the remedy and upgrading, restore health and function is lost, the result of people being falsely prescribed in clause 1 article 7 of resolution No. 388 include : the costs are guided in a subsection 2.1 of this and the cost for mounting legs, prosthetic, eye, buy wheelchairs, scooters, crutches and fix aesthetics? to support or replace part of the lost body function or loosening of the Vietnamization (if available).
2.2. People were falsely or like they were material damages in subsection 2.1 instructions section 2 if they had to pay the reasonable expenses thereof. In case the State Agency has to pay part or all of the costs, then they do not compensate the costs that the State Agency has to pay.
2.3. Cost and actual loss of income caregivers who suffer oan during treatment prescribed in clause 2 article 7 of resolution No. 388 is determined as follows: a) reasonable costs for the care of people with oan during treatment include money train car rental, accommodation, according to the average price in the local (if any) of the one person who's been falsely by necessity or by medical establishments required to have people take care of people with oan during treatment.
b) actual income loss of caregivers who were falsely in the duration of treatment is determined as follows:-If the carer person with oan have steady income from wages in payroll, the money from the labor contract shall be based on the salary, the remuneration of the month before the adjacent which must take care of people being falsely to determine actual earnings lost.
-If the caregiver who was working there and monthly crime have steady income, but have different income levels, income levels and the average six months before the person is adjacent to go take care of people being falsely as a base to determine the actual earnings are lost.
-If the caregiver who was falsely does not yet have a job, or there may be working, there may not, therefore, monthly income is not stable, then enjoy the wages of care by general minimum wage by State regulations at the time the person caring person with oan.
-During the care of people with oan, if people still care agency, employers who pay wages, pay the workers according to the provisions of the labour law, social insurance, they do not receive compensation.
2.4. The Vietnamization inability to work and need regular care is not able to perform the physical activities due to spinal paralyzed, blind eye, paralysis of two genera, suffered severe mental and other cases by the competent State Agency regulations. More affordable for people who regularly take care of people being falsely inability of labour provisions in paragraph 3 article 7 of resolution No. 388 is calculated by the average wage paid to the care of people with disabilities in local people being falsely reside.
2.5. When settling the compensation of damage due to the loss of real income of people being falsely prescribed in article 9 of resolution No. 388 notes: a) the Vietnamization (including dead cases) only be compensated for lost real earnings during the time they are detained detention, the penalty of prison, if they have steady income.
b real stable income) lost of people being falsely identified as follows:-If the prior custody, detention, imprisonment sentence which people were falsely have steady income from wages in payroll, remuneration from employment contracts, shall be based on the salary, the remuneration of the month before that person adjoining custody detention, imprisonment sentence to determine the actual earnings are lost;
-If the prior custody, detention, imprisonment sentence which people were falsely has working and stable income monthly but have different income levels, income levels, an average of six months before the adjacent custody, detention, penalty of jail as a base to determine the actual earnings are lost.
c) Who were employed or had not undeserved reputation, work, have, and therefore no monthly income is not stable to be compensated according to the provisions of article 9 of resolution No. 388.
d) during custody, detention, if people were still in the Agency, the oan employers pay wages, pay the workers according to the provisions of the labour law, social insurance, then they do not receive compensation.

2.6. Just compensation payments for people who suffer from oan is performing the obligation of support stipulated in paragraph 3 article 6 and article 7 paragraph 3 of the resolution No. 388 if before the custody, detention, imprisonment sentence that person is real whitewash are support service but during the custody, detention, death penalty Executive, compromised health leads to loss of labor capacity. Those are people with oan alimony is compensation payments respectively. The level of support, time, method of support pursuant to the provisions of the law on marriage and family.
 
III. COMPENSATION RESPONSIBILITY For OAN 1. The compensation of the damage should be addressed promptly, openly and lawful. The damage which people were falsely or their relatives are compensated according to the provisions of resolution No. 388 must be compensated once, unless otherwise specified by law or the parties have agreed otherwise. As for the support account for the people who suffer are falsely made the obligation of support stipulated in paragraph 3 article 6 and article 7 paragraph 3 of the resolution No. 388 if people are agree to receive support once the compensation for them; If they do not agree to receive a once-monthly support, then in time they are granted.
2. The identification of the authorities responsible for damages are pursuant to article 10 of resolution No. 388. The identification of the authorities responsible for damages in some particular case as follows: 2.1. The Agency ordered the custody, detention has approved of the Procuracy, but the expiry of the custody, detention has approved of the Procuracy that continues the custody, detention has custody, detention or custody order, however, not detention was approved by Procuracy is responsible for the entire damage compensation in case the custody cancelled because the person detained has no violations of the law or the detention was cancelled because the detention was not taken offence, except for damage due to the property being violated.
2.2. When a person is falsely identified the body responsible in damages is the Agency handle the matter regardless of the Agency have conducted previous proceedings have dealt oan partially.
Example 1: the investigating agency has concluded the investigation suggest the Procuracy prosecuted about crimes, but only the Procuracy prosecuted about a crime, when the trial court of first instance declared the accused not guilty for not performing criminal acts, the Procurator is responsible for compensation for the entire damage , except for damage due to the property being violated.
Example 2: Procuracy prosecute accused of many crimes, but only the first instance court trial and declared the accused guilty of a crime, when the appellate court of appeal declared the accused not guilty for not performing criminal acts, the Court of first instance is responsible for compensation for the entire damage , except for damage due to the property being violated.
2.3. If after the case that the Court of first instance decision of detention accused (or defendant) to complete the trial at first instance, but when a trial court of first instance declared the accused not guilty and suspended the case because the person is not taken offence , the judgment has the effect of law, the Procuratorate prosecution decisions are responsible for compensation for the entire damage, excluding damage caused by compromised assets.
2.4. If after the case that the Court of appeal the decision to the detention of the accused in order to complete the hearing of appeal, but when hearing of the Court of appeal cancelled the verdict of first instance, the accused not guilty and suspended the case because the person is not taken offence, the Court of first instance is responsible for compensation for the entire damage , except for damage due to the property being violated.
2.5. for property of the person in the case prescribed in clause 1 article 1 of resolution No. 388 confiscated, detention, levy, seizure that was damaged, the Agency had a seizure decision, custody, levy, seizure of property is responsible for compensation.
 
IV. The Level, SENDING The DECISION, Judgement 1. The decision to identify the person detained is not made violation of law; The decision, the judgment determines who prosecuted, arrested, criminal detention in prison does not make the offence must be given or sent to the person to be compensated, the agency responsible for compensation under the provisions of resolution No. 388 and instructions in this circular.
2. The level, sending the decision to identify the person detained is not made violation of law; the decision, the judgment determines who prosecuted, arrested, criminal detention in prison does not make the offence must be made within the time limit due to The criminal law provisions. For the case of criminal law there is no provision, then that term is 10 days from the date of the decision, the verdict.
3. In the case of the decision determining the custody does not perform acts in violation of laws, decisions, judgements and determine who was prosecuted, was the detention, imprisonment sentence does not make the offence has a complaint, suggestion, request the competent authority to review then, the Agency has the authority to review urgently resolve within 30 days from the receipt of a complaint, request for proposal, and announces the results for resolution of complaints, suggestions, demands to know. If the Agency has the jurisdiction to consider complaints, suggestions, ask remains the decision, judgment, damages must be made immediately.
 
V. RECOVERY PROCEDURE, The CLAIM For DAMAGES, The AUTHORITY And The PROCEDURES For COMPENSATION For DAMAGES In COURT 1. The procedure of restoring honor 1.1. The Agency is responsible for the damages suffered to whitewash ahead of the main public apology within thirty days from the date of the judgment, the decision in effect the law of the competent bodies active in criminal proceedings defines that person being oan.
1.2. The heads (or authorized person) of the authorities responsible for compensation must negotiate with people with oan, relatives of people who were falsely or their legal representative about the venue conducting sorry (can in residence or maybe at work of people with oan). At the same time must notify the Agency where the Vietnamization work, local authorities where the Vietnamization of residence and socio-political organizations which people were falsely as members to the Agency, the Organization sent representatives to attend.
1.3. The authorities responsible in damages to directly apologize to the Vietnamization and posted the main improvements on a central newspaper (people or people's army newspaper) and a local newspaper (the newspaper of the party, the central cities) in three consecutive numbers , except in cases of people being falsely or their legal representatives have requested no publicity.
2. procedure 2.1 damage claim. People with oan, relatives of people who were falsely or their legal representative, the provisions in clause 2 article 5 of resolution No. 388 must have a compensation claim. The compensation claim must indicate the account had a claim for damages, compensation to as bases for negotiations and other content under the form of 01a, 01b attached to this circular. Attached to the petition must contain the following documents:

a) decision, the judgment has the effect of law determine the Vietnamization;
b) a valid copy of the identification of the person is falsely or prove their relations for people suffering as household paper, whitewash marriage registration, birth certificate, ID people? or confirmation of the local government where the person is resident or oan organizations where people were falsely;
c) valid vouchers on the reasonable expenses, on revenue of people being falsely before the custody, detention, imprisonment sentence.
The Agency is responsible to receive compensation, the papers attached document and write to the window to receive menu. Within a period of 30 days from the date of receipt, the agency heads are responsible for compensation of the damage themselves or authorize another person to conduct the negotiations with people being falsely or their relatives about compensation.
2.2. In the case of people being falsely death that has many relatives should ask them to send a representative to negotiate about compensation. The elected representative must be made in writing. If the relatives of the dead are not falsely sufferers who do the representatives they must proceed to negotiate directly with them.
2.3. the agency heads are responsible for compensation, or the person legally authorized to conduct compensation negotiations at Headquarters. When conducting negotiations to review the damage claim in the petition, the papers, the attached document. Based on the account of damage compensation provisions in articles 5, 6, 7, 8 and 9 of resolution No. 388; the other provisions on the regime, standards and norms stipulated by the State (if any) and the instructions in this circular to negotiate on account of damage would be compensated, the level of compensation.
2.4. When conducting negotiations to establish the minutes record full negotiation process performance. In case the negotiation, at the latest within seven days from the date of establishment of the minutes to negotiate the agency heads are responsible for compensation to the compensation decision. Compensation decisions must specify the amount of compensation for damage and the compensation of damage as a result of the negotiation to be recorded in the minutes (according to the Model attached 03b 03a, circular).
3. jurisdiction and procedure for compensation for damages in the Court 3.1. People with oan, relatives of people who were falsely or their legal representatives have the right to ask the Court to have jurisdiction in damages within 30 days from the date: a) expiry of 30 days from the date of the agency having responsibility for compensation received compensation claim without conducting negotiations;
b) minutes of negotiation failed to be created.
3.2. competent court accepting the settlement of claims for damages is district people's Court, County, town, city in the province where people were falsely residence or work. In cases where the Court has jurisdiction to resolve the compensation, and is the agency responsible for compensation, should the component assignment of trial is that people without job-related crime. The procedure of compensation for damages in court is done according to the provisions of the civil procedure law.
VI. ABOUT The EXPENSE And PAY COMPENSATION For DAMAGE 1. Cost estimation of annual compensation, the actual base compensation for people who were falsely by the competent person in criminal activities caused in previous years, the Agency has jurisdiction in criminal activity in Central (Ministry of public security, the Supreme People's Procuratorate , The Supreme People's Court, the Ministry of Defense including the border guard, the marine police force, Justice Ministry and the Agency was given authority to investigate such as: customs, Rangers?) in collaboration with the Ministry of finance estimating cost of compensation to people who were falsely to estimating aggregate State budget submission to Congress.
2. Procedure of paying compensation 2.1. Immediately after having decided the compensation in case the negotiation or the verdict, the decision of the Court on the compensation law takes effect, the Agency is responsible for compensation must have written the compensation proposal submitted to the Central Administration in order to review the General and recommended the Finance Ministry granted compensation funds harm. In the text to keep specific people to be full compensation, the compensation for specific damages clause and the total recommended amount the Finance Ministry for the compensation of damage.
Enclose the text says on must have the following documents: a) the verdict, the decision of the competent authorities in criminal activities determine the compensation being falsely;
b) the decision of the Agency is responsible for damages in case the negotiation or the verdict, the decision of the Court on the compensation law was in effect.
2.2. within 5 days from the date of grant proposal writing compensation funds and the accompanying profile specified in point 2.1, the Finance Ministry granted funding for the Agency is responsible for damages to make compensation for people with oan.
2.3. Upon receipt of funding by the Finance Ministry, the agency responsible for compensation for damage must be made soon whether to pay compensation to people who suffered a whitewash or relatives of people being falsely under the provisions of the law on the State budget.
3. Finalization of funding compensation ended the financial year, the Agency has the responsibility to compensate damage to people being falsely set up settlement funds has paid compensation for damage reports to the governing body in Central.
The Central Administration in general expenditure settlement to pay compensation to industry-wide settlement with the Ministry of finance in accordance with the law on the State budget.
The Ministry of finance general expenditure settlement compensation for people who were falsely led by competent in criminal activity caused the settlement to the State budget the National Assembly according to the provisions of the law on the State budget.
 
 
VII. DISPUTES ABOUT LIABILITY in DAMAGES BETWEEN the COMPETENT AUTHORITIES in CRIMINAL ACTIVITIES in the course of implementing the compensation settlement for the people suffered a whitewash by people competent in criminal activity caused, if there is a dispute within the industry , the direct superior heads of the industry look to solve; If there is a dispute between the heads of the relevant departments to coordinate together to consider the settlement.
If there is a dispute between the industry, the direct superior heads together to consider the settlement.
The heads of the departments in the Central Government is responsible for resolving all disputes within his industry and internal coordination to consider disputes between the branches together.
 
VIII. ABOUT the EFFECT of the CIRCULAR, this circular effect after 15 days from the date The report.
In the process, if there are problems need guidance, the local industry reflected each for the upper level is the Ministry of public security, the Supreme People's Court, the Ministry of Justice, Ministry of defence, the Ministry of finance and the Supreme People's Procuratorate to have additional, timely instructions./.