Luận án Trách nhiệm bồi thường của Nhà nước và cải cách pháp luật Việt Nam - Nguyễn Minh Oanh

STATE LIABILITY FOR COMPENSATLON IN THE DEVELOPMENT OF VIETNAM: PROPOSALS FOR FURTHER REFORM By Nguyen Minh Oanh LL.M (Lund University, Sweden) Submitted in total fulfilment of the requirements for the degree of Doctor of Philosophy TRUNG TAM THONG TIN THU VIEN| TR¯ỜNG ẠI HOC LUAT HÀ NỘI PHÒNG ỌC — 42/0 | College of Law and Justice Victoria University Australia SEPTEMBER 2015 Abstract The Law on State Compensation Liability 2009 (SCL) is a turning point in the reform process in Vietnam with its aims of protecting human rights, boosting the development of a state based on the rule of law and a socialist-oriented market economy. This thesis critically examines this legislation and the remedies provided under it relating to wrongful decisions or actions by the executive and judicial branches of government and for specific wrongful enforcement activities. Using mixed methodologies the aims of the study are to consider appropriate reforms to improve the SCL and enhance its implementation. The thesis considers the effectiveness of the SCL and its enforcement.

It reviews and analyses theories and policies relating to state liability for wrongful actions. This establishes a platform for the evaluation of the SCL. It critically investigates SCL’s appropriateness. It argues that the SCL has many deficiencies and needs further reform.

The thesis reviews and analyses the procedures under and for the enforcement of, the SCL. It points out that the procedures and mechanisms for settlement of compensation claims are complex and inappropriate. The enforcement of the SCL 1s poor and consideration is given to its improvement. The thesis also compares the Chinese SCL with that of Vietnam.

It examines the similarities and differences in order to draw on Chinese experiences which may be relevant to Vietnam°”s legal reforms. Finally, the thesis makes recommendations to improve the SCL and its enforcement in order to support the Doi moi (innovation) in Vietnam. Student declaration I, Nguyen Minh Oanh, declare that the PhD thesis is no more than 100,000 words in length including quotations and exclusive of tables, figures, appendices, bibliography, references and footnote. This exegesis contains no material that has been submitted previously, in whole or in part, for the award of any other academic degree or diploma.

Except where otherwise indicated, this exegesis is my own work. cee cee cee cee ces Acknowledgements To complete this thesis, | owe a great deal to many people and organisations. [ would like to thank Hanoi Law University, where I work, and the Government of Vietnam for providing me with the opportunity to study in Australia. My special thanks go to the College of Law and Justice of Victoria University for their financial support for my extra tuttion fees.

Without such kind support, | would not have been able to undertake this thesis. [ owe a particular debt of gratitude to my principle supervisor, Professor Neil Andrews, for his kind acceptance in supervising my research; for spending a great deal of time, energy and patience in helping me to clarify issues, shape ideas, reading various earlier drafts of my thesis, and giving me insightful comments; for his sympathy and encouragement with my life and financial difficulties. | thank my co-supervisors, Dr James Me Convill and Mr Brendon Stewart -my former co-supervisor- who kindly read my drafts and gave me useful advice. The thesis would never have been completed without their valuable support.

My deep gratitude goes to my family: my father who always looked forward to hearing from me during my four years of study; my husband Nguyen Manh Cuong who has been patient and lonely in Vietnam while I was in Australia for my PhD course; my first child Ngan Giang (Ruby) who has given me the courage and made me proud of her; my second child Chau Giang (Sydney) - a baby born in Australia who has been living far from me for two and a half years, thereby giving me a strong incentive to finish my challenging work; and my brother and sisters who have constantly encouraged me with their interest in the progress of my studies. My thanks is due to the staff and my friends at the College of Law and Justice for their recognition and friendship. Deep thanks also go to colleagues in Hanoi Law University, the officials in Department of State Compensation, MOJ especially Mr Phuong, who supported me by providing reports and documents, and gave me the opportunity to attend several conferences when I returned to Vietnam. Also, in writing this thesis, I benefited from the support of my friends and officials from SPC, SPP, NA, MOI, lawyers and claimants who participated in my fieldwork.

| would like to thank all of them for their contributions to this thesis, making it comprehensive and valuable. Special thanks to Hoàn, Quyến, Uyen, my close friends in Melbourne, who supported me in editing the thesis draft. J am grateful to my friends, colleagues and many other people in Australia and Vietnam who in various ways helped me to complete this thesis. This thesis is a special gift to my mother in heaven who devoted her whole life to her family.

Preface I have been teaching Civil law including the law of obligations and civil lability at Hanoi Law University since 2000. The idea for this thesis emerged in 2003 after the promulgation of Resolution 388. As I had to teach my students about the lability of the state for wrongful convictions, I had to research and prepare lectures on this issue, Initially, { found that it was difficult to understand even though | spent time and effort on it. Through that research and comparisons made with ordinary civil liability that | was teaching, I found this Resolution had many shortcomings and was very challenging to apply in practice.

The topic became more obvious after | had written several papers for the Hanoi Law University Project which aimed to strengthen legal reform processes in Vietnam. The more | worked on the issues, the more background | obtained and the more interested | became. I have also attended several conferences on the drafting of the law on state liability for compensation. I observed the process of making the law and the debate between state officials.

The draft law was reviewed by many state agencies and citizens before being approved by the NA. After the enactment of the SCL in 2009, | saw that aithough there had been a relatively long and tidy process of law-making, the previous problems still remained in the new law. Additionally, the longer the law had been in force, the more deficiencies it showed. I also realized that there had been a lack of background in the theories and nature ofstate liability and the task to promulgate law had impacted on the quantity and quality of law.

Moreover, | was interested in many cases relating to state liability for compensation which appear every day in the Vietnamese media. I often asked myself why claimants have found it so difficult to claim for compensation. I decided to examine this topic seriously, and commenced my research for this thesis in 2010. At the beginning of the research, | thought that the SCL had been established with little if any regard for any basic theories.

| intended to examine a legal theory or transplant research which would be expected to enrich the theory of state liability and transplantation of law in Vietnam. To begin with, 1 looked at the literature on legal theory and doctrine relating to state liability for compensation as significant issues. It became clear that in legal writings, many writers such as Harlow, Peerenboom, Milhaupt and Pistor conclude that there is no one theory for the linked phenomena and every government promotes economic and legal growth in its own way based on its context. | continued to read material pertaining to (1) the relationship between the development of the economy and the law studied by Marx, North and Pecrenboom; (2) the debate about the priority of developing the economy or protecting human rights described by many authors such as Peerenboom, Gillespie and Chen; (3) the three elements which are required to build the institutional capacity to support economic growth referred by North; (4) the reform process in Vietnam including legal reforms emphasising the importance of the SCL investigated by Pham Quoc Anh, Duong Thanh Mai, Duong Dang Hue, Nguyen Sy Dung, Le Ha Vu.

These suggested to me that I should place the SCL in the context of Vietnam and approach the topic by conducting research on law reform rather than on legal theories or theories of the transplantation of laws. The law reform aim of the thesis informed its design and the qualitative methodology chosen. The first research question is about the quality of SCL. There is also a larger question: why is it that in Vietnam it is difficult to enforce not only the SCL but also the general law? What I read in the relevant literature on the Vietnamese legal system and institutions confirmed my resolve that the thesis should have a law reform orientation.

It also established the framework for a review of the law. The literature review revealed weak mechanisms in the enforcement of the general law in Vietnam which emphasised the importance of context for the SCL. It is necessary to investigate the less-than-satisfactory enforcement of the SCL in order to discover its causes and effects and determine ways to improve it. In many ways, the thesis examines state liability from three perspectives: legal, political and social.

It views the SCL in terms ofits position within the legal system and in the context of the Vietnamese government's desire for further political and economic development. By conducting the interviews, reading the relevant literature and discussing the various emerging issues with my supervisor, my knowledge has been enriched and the structure of the thesis took form. This included focuses on the shortcomings of the substantive law (Chapter 4), the procedural law (Chapter 5), and its enforcement (Chapter 6). These issues were investigated with consideration given to the development of Vietnam (Chapter 1), the realities of its legal and political system, theories, and the distinctive nature of state liability (Chapter 3).

They are consistent with the aims which were stated at the beginning of the research. vi The research is significant because it coniribules to a more comprehensive understanding of state liability; moreover, it is hoped that the findings will hasten the reform processes in Vietnam by leading to a range of appropriate recommendations, especially those given in Chapter 8. vil Table of abbreviations The following abbreviations appear in the main text and/or footnotes of this thesis. Most are spelled out in full or otherwise explained when they are first mentioned.