VIETNAM NATIONAL UNIVERSITY SCHOOL OF LAW TRAN THI THU HANG PROTECTION OF THE RIGHT OF DAMAGE SUFFERERS IN THE LAW ON STATE COMPENSATION LIABILITY OF VIET NAM MASTER THESIS HA NOI - 2019 TIEU LUAN MOI download : skknchat@gmail.com VIETNAM NATIONAL UNIVERSITY SCHOOL OF LAW TRAN THI THU HANG PROTECTION OF THE RIGHT OF DAMAGE SUFFERERS IN THE LAW ON STATE COMPENSATION LIABILITY OF VIET NAM Specialized in Law on human rights Code No.07 MASTER THESIS Scientists’ instructor: Dr. LA KHANH TUNG HA NOI - 2019 TIEU LUAN MOI download : skknchat@gmail.com STUDENT DECLARATION I, Tran Thi Thu Hang, declare that this Master thesis is my own work. The figures, references and examples are accuracy, honesty. I have completed all the subjects of the courses, has fulfilled all my financial obligations to the School of Law - Vietnam National University.
Therefore I offer the School of Law - Vietnam National University to consider the proposal so that I can defend my Master thesis. Thanks faithfully! Student Tran Thi Thu Hang TIEU LUAN MOI download : skknchat@gmail.com ACKNOWLEDGEMENTS With great joy have I written this thesis, but obviously I couldn‟t have done it all by myself. Special thanks to my parents, who I can call whenever necessary to look after my children and encourage me to complete my thesis. Also to Doctor La Khanh Tung, I could not wish a better instructor, who was not only my teacher during the whole postgraduate program but also my instructor to write my thesis.
His willing to help students, to have face to face meetings for discussions with every step of my research has helped me to complete my thesis on time. Special thanks also to the School of Law, where we are always welcome. Thank you, the Government of Australia, who has sponsored to the postgraduate program of human rights supporting us the diversity of learning materials and seminars relating to human rights. And last, but certainly not least, my husband and two kids, the love of my life, who always give me a push and smile.
STUDENT Tran Thi Thu Hang TIEU LUAN MOI download : skknchat@gmail.com TABLE OF CONTENTS STUDENT DECLARATION ACKNOWLEDGEMENTS TABLE OF ABBREVIATIONS PREFACE. 1 CHAPTER 1: SOME THEORETICAL ISSUES ON RIGHTS OF THE DAMAGE SUFFERER AND STATE COMPENSATION LIABILITIES. Rights of the damage sufferer and state liability to compensate. Definition, characteristics and elements of the rights of the damage sufferer.
Definition, characteristic, elements of State compensation. Protecting the rights of the damage sufferers in the State compensation mechanism. Protecting the rights of the damage sufferers and State compensation liability in international and regional law. Rights of the damage sufferer in international law.
Rights of the sufferer in the region law. Rights of the damage sufferers in some countries of the world. 30 Conclusion of Chapter 1. 39 CHAPTER 2: RIGHTS OF THE DAMAGE SUFFERER IN THE LAW ON STATE COMPENSATION LIABILITY IN VIET NAM.
Regulations of the law. Protection of the rights of the damage sufferer in practical in the period before 2009. Period from 2009 to 2017. 49 TIEU LUAN MOI download : skknchat@gmail.
The necessary to promulgate the Law on State compensation liability 2009 and the protection the rights of the damage sufferers in the Law on State compensation liability 2009. The practical of protecting the rights of the damage suffered through the State compensation liability in this period. Limitations and reasons. State compensation liability in the period 2017 up to now.
Protecting the right of the damage sufferer in the Law on State compensation liability 2017 and comparion to the Law on State compensation liability 2009. Protecting the rights of the sufferer through the implementation of the Law on State compensation liability in the period from 2017 until now. Limitations, problems and causes. 77 Conclusion of Chapter 2.
79 CHAPTER 3: RECOMMENDATIONS TO PROTECT THE RIGHTS OF THE DAMAGE SUFFERER IN STATE COMPENSATION LIABILITY IN VIETNAM. Requirement from the Communist Party and State to protect the rights of the damage sufferer in the regulations on State compensation liability. Improving the Law on State compensation liability. The scope of State compensation liability.
The compensable damages. The procedure to settle compensation. Coordination in compensation settlement. Improving the capacity of the official duty performers and the qualification of the public service.
83 TIEU LUAN MOI download : skknchat@gmail. Establishing an independent agency to protect human rights and for the resolution of claims and payment of compensation. Continuing disseminate, educate and propagandize regulations on the rights of the damage sufferer and enhance the quality of the public service to assist the damage sufferers in carrying out the procedures for claiming compensation. 86 Conclusion of Chapter 3.
92 APPENDIX TIEU LUAN MOI download : skknchat@gmail.com TABLE OF ABBREVIATIONS Decree No. 47/CP : Decree No. 47/CP on the settlement of compensation for damage caused by State officials, employees or competent persons of legal proceedings agencies ICCPR : International covenant on Civil and Political rights 1966 Resolution No. 388/2003/NQ-UBTVQH11 on compensation 388/2003/NQ- for the victims of wrongful convictions UBTVQH11 SCL : Law on State Compensation liability UN : United Nations TIEU LUAN MOI download : skknchat@gmail.
The urgency of the research topic After becoming a member of the United Nations (UN), Vietnam has gradually participated in most international conventions on human rights, including the International covenant on Civil and Political rights 1966 (ICCPR), Socialist Republic of Vietnam ratified it on September 24, 1982. Most countries in the world have recognized the right to compensation as one of the basic civil and political rights of people. Accordingly, many countries have concretized in domestic laws with the recognition of the State's compensation responsibility for the damages caused by official duty performer during the performance of their duties. In the proceeding of building the Socialist Rule of Law State as well as to implement international commitments that Vietnam has accepted, Vietnam has promulgated a system of laws, among them are regulations on the responsibility of the State to compensate for damages caused by an official duty performer while they are on duty.
The Constitution 1992 is the first document that clearly recognizes the right to claim compensation for illegal acts of official duty performers during the performance of public duties. This provision is further affirmed and concretized in paragraph 5 of Article 31 of Constitution 2013. The Civil Code 1995 has reserved two Articles 623 and 624 to stipulate the liability of state agencies and regulations. This continues to be noted in the Civil Code 2005 (Article 619 and Article 620), Civil Code 2015 (Article 598).
An important step is on June 18, 2009, the official Law on State compensation liability (SCL) was approved at the 5th session of the 12th National Assembly, which came into force on January 1, 2010. This is the first specific law regulates on the responsibility of the State to compensation for damage caused by illegal acts of official duty performers. 1 TIEU LUAN MOI download : skknchat@gmail.com In addition to the achievements, SCL 2009 has also some limitations and shortcomings. Therefore, on June 20, 2017, at the 3rd session of the National Assembly XIV has passed the SCL, which comes into force since July 1, 2018.
These are the two leading laws that specifically regulate the rights of the damage sufferer due to illegal acts. The content of compensated objects, scope of compensation liability, criteria for determining damages and compensation levels, funding, responsible agencies for compensation and especially principles and procedure to claim for compensation are stated clearer. In the process of implementing the SCL from 2010 up to now, it shows that, although the rights of the damage sufferer have been assured, there are still many rights and interests of the damage sufferer that have not been guaranteed. In the process of building the socialist rule of law state as well as to implement international commitments that Vietnam has ratified, the rights to compensation should be continued researching.
One of the ways to improve the effectiveness of ensuring the right to compensation is to study the effectiveness of the regulations in SCL 2009 and SCL 2017. Therefore, I choose to do research on the topic of “Protection of the right of damage sufferer in the Law on State compensation liability of Viet Nam” for my Master thesis of law in human rights. Research situation Until now, in Viet Nam there has only one books on Law on State compensation liability 2017, which is “Main contents of the Law on State compensation liability 2017” (State Compensation Department, 2017, People‟s Police Publishing House). But it has not been any research on the right of the damage sufferers in the SCL 2017 in particular.
There have been many projects and research only on Law on State compensation liability 2009 2 TIEU LUAN MOI download : skknchat@gmail.com which have been carried out by experts under different angles and in different areas, such as: Development of State compensation liability (Le Thai Phuong, 2018, Human rights institution, No. 3, Hanoi); Compensation liability in the feudal of Viet Nam (Tran Hong Nhung, 2015, State and Law Journal No. These two articles is a reference to summarize the development of State compensation liability in Viet Nam. Other researches on Law on State compensation liability 2009 are: State compensation liability in civil proceedings (Hoang Thi Hoai, 2015, Thesis at School of Law, Hanoi National University), Implementation the State compensation liability caused by administrative agencies in Vietnam (Nguyen Do Kien, 2014, Doctor Dissertation, Ho Chi Minh National Academy of Politics), Research on Law on State compensation liability (State compensation Department, 2012, Judicial Publishing House, Hanoi), The main contents of Law on State compensation liability (Duong Dang Hue, 2008, Democracy and Law Journal), etc.
Besides those researches which are named above, there are some textbooks, conferences records, articles, thesis related to State compensation. In the world, there is some research which is relating to the issues of State compensation, such as: (i) Compensation liability for damages incurred while exercising public authority – a basic pillar of democratic State ruled by Law (Agata Cebera & Aleksander Wrobel, 2016, Polish Political Science yearbook, vol 45); (ii) State liability – Ten years after Francovich (Alska Scherer, 2002, Master thesis at Lund University); (iii) Fair Trial manual (Amnesty International, 2014, Amnesty International Publications, United Kingdom); (iv) An introduction to political philosophy (A. Murray,2010, Routledge Revivals, London); (v) Watching the watchdog: China’s State Compensation law as a remedy for procuratorial misconduct Pacific Rim law 3 TIEU LUAN MOI download : skknchat@gmail.com and policy Journal (Keith Hand, 2000); (vi) Basic elements of German Law on State liability in Bell and Bradley (eds), Governmental liability: A comparative study (Wolfgang Ruefner, 1991, 249 ff); (vii) State liability for compensation in the development of Vietnam: Proposals for further reform (Nguyen Minh Oanh, Doctor Dissertation, College of Law and Justice, Victoria University, Australia), etc. All the mentioned studies have provided great knowledge and information about the view, role and the way how to protect the right of the damage sufferer/ the victim/ the injured party in case human rights are violated by the official duty performers.
But until now there is no research on the right of the damage sufferer in Law on State compensation liability in Viet Nam. Therefore, this is a new work in which analizes the development of the protection of the right of the damage sufferers through stages in Viet Nam, especially, it compares the protection of right of the damage sufferer between SCL 2009 and SCL 2017, thereafter gives some recommendations to protect the right of the damage sufferers in SCL 2017 in Viet Nam. Target of this research 3.