Phê đúp SCL và trách nhiệm bồi thường nhà nước - Nghiên cứu tại Việt Nam

STATE LIABILITY FOR COMPENSATION IN THE DEVELOPMENT OF VIETNAM PROPOSALS FOR FURTHER REFORM Dr Nguyễn Minh Oanh STATE LIABILITY FOR COMPENSATION IN THE DEVELOPMENT OF VIETNAM PROPOSALS FOR FURTHER REFORM TRUNG TAM THONG TIN THU V¡Ê TRƯỜNG ĐẠI HỌC LUẬT + PHÒNG ĐỌC THẾ GIỚI PUBLISHERS Table of Contents pC UC) ee ix LÝ4 41s (0 In. xii Table of Abbreviations. 2n tre XV Chapter carves at Ct O0T :-. Context Of so am.

Literature review and conceptual fraMe@WOKK. State Gopi: ginal OVElVIGW os. State liability in Vietnamese reform PLOCESS. Framework for the reS@Qrch uu.

AIMS Toán 3 cam. Core research QUESTIONSTS. as Chaptertwo: Overview of state liability for compensation hi. The Vietnamese Political sSyS†©TS.

cv Tnhh HH tr 52 2. The legal syS†€erm. State liability in legal histOry.St HH HH1 key 59 2A YF, Perrier De re Ï ĐÁ,.-sandĩicugissoig3Gi64S-DSHH4 G/RDD1000004:G0000105860E04 59 2. Period from 1945 to 1986 uo.

Period from 1986 to 2009.- - Set stSetH ng rưet 65 2. Period from 2009 to PLOSONE. Theories of State liability. Nature and significance of state liability.

Nature of state liability for compensatiOn. Significance Of the SCL in Vietnam.scc<cs<ccxsc<csecree 88 ed4 GY Re seoeeraemz emesis exes semester REGEN SRN RNR EN 91 Chapter three: A critical review of the SCL - The necessity for its further refOrm.cctshheHeHgreree 92 ENHIAI 9e 0a on 6. The progressive aspects Of the SCL. The limitations of the SCL which are inconsistent its overall goals.

The scope ofliability for compensation is limited and inconsistent with the Constitution and Civil Code. The grounds for state compensation liability limit claimants ¡n enforcingq their TIGNES. The method ofcalculating damages is unclear 21401s12is12)(e/507151:-0000n0n0n88Ẻẻn. The responsibility of the OfÍicCiÌS.

c5 svsvcsveereeierrrerree 127 E63 lon ố ốố ố ẽ. 131 Chapter four: The procedures for claiming compensation - a complex and ineffective DroCeSS. Vietnamese Compensation Procedure. Obtaining A valid documen(.

«se se xssvsccetsrsersrsrrsrseree 133 4. Procedures for claiming compensdfiOn. Compensation funds and payment procedures. Evaluation of the Compensation procedures.

The agencies which are liable to pay compensation. Agencies which resolve COMPENSATION claims. The relevant State AGONCY o. The People’s COUPE w.

Time LIMITATIONS on CLAIMS oe eceeceecesesessesesecsestseesesenenceceserecsesenerataeaescenenes 162 ALF. CARI C UIST reserennnrbthtontiittiaeSEE8L. 090003 wR EA 167 vl Chapter five: Implementation of the SCL - Achievements and failing and their CaUS©S. Ăn SH ec 168 Pa (2° 0a 3+4.

Achievements obtained in implementation of the SCL. Secondary legislation guiding the implementation KIẾ CEE [LG cance cece ccc ie dh i AR SR 169 5. Building professional institutions to administrate the Law. Publicising of and education about the LawW.

Training in the skills for settling state compensation claims. Achievements of compensation Settle MeN. Limitations in the enforcement of the SCL. Claimants face difficulties in MAKING CLAIMS.

The difficulty of determining and calculating damage. The limited amount ofcompensaftion. Challenges in determining the agency liable for compensation. ineffectiveness of the Compulsory neqotiations.

Delays in the settlement of compensation claims. Difficulties and delays in enforcement of judqmenits. Causes Of ineffeCtiVeFISS. HH HH1 kh 207 5.

The shortcomings of the SCL and secondary legislation. Inadequate publication of and education about the SCL. The limited capabilities of state officials and judqges. The inflaence ofthe legal GUỈUTE,.«eearnniidanoianinasdtraninaaaneoeaa 217 BS, [FLEETYMICNE AE VE huennnanuasnunsnonttotifrooanituB800nGIỂNOsiNSGBISSRGSENGUSGENSG0isEfnnurniuml 220 6a on ốẽ.

224 Chapter six: A comparative perspective - state liability for compensation in Chinese laW.0gBSE2E00828008888:001i/n5048013/EĐEEE RSET TNS 226 6. Justification for the CompDarÏSOT. HH HH ren 226 6. Similarities between Vietnamese and Chinese SCL.

The background to state liability. RECOGNISING State HADI ty. Limitation in listing the wrongful ACTIONS. Compensation for both mental and physical loss.

The agency liable for compensation. The personal liability of the ofÍiciqÌ$. Time limitations for claiminq compensation. Differences from Vietnamese SCL and Chinese SCL.

Pravision tb@GU† ChONIAIUS oc asniinnnanaaseresasecnmmannans, cnammammnamenes 252 6. Grounds for State HADIIY cece cesses che 254 6. Determining and calculating the damage. 263 Chapter seven: Conclusion and Recommendation.

CONCIUSIONS on research qu©SfÏOPS. ác cà cSt St St v21 1211111324111 41. cá vs ctc2121111211111 1118170 HH, 284 7. Academic contriĐUfIO'I.

se che gio 284 7.c- ccccc+s th rHhrie 286 7. Limitations of the researCH. Suggestions for the future researCh.- cc tt tr xe 289 1211 2. 29] vill 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 research 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 research 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 SCLs appropriateness. It argues that the SCL has many deficiencies and needs further reform. The research 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 is poor and consideration is given lo its improvement. The research 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 research makes recommendations to improve the SCL and its enforcement in order to support the Doi moi (innovation) in Vietnam. ix Acknowledgements Much of the research upon which this book is based was conducted in my PhD thesis at Victoria, Australia between 2010 and 2014. To complete the thesis, I owe a great deal to many people and organisations. I 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 tuition fees. Without such kind support, I would not have been able to undertake the thesis. I 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. I thank my co-supervisors, Dr James Mc Convill and Mr Brendon Stewart -my former co-supervisor- who kindly read my drafts and gave me useful advice.

The research 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 X State liability for Compensation in the Development ofVietnam. 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 Lé Thai 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 the thesis, I benefited from the support of my friends and officials from SPC, SPP, NA, MO], lawyers and claimants who participated in my fieldwork. I would like to thank all of them for their contributions to the research, making it comprehen sive and valuable. Special thanks to Hoan, Quyen, Uyen, my close friends in Melbourne, who supported me in editing the research draft.

1am grateful to my friends, colleagues and many other people in Australia and Vietnam who in various ways helped me to complete the research. This book is a special gift to my mother in heaven who devoted her whole life to her tamily. xl Preface I have been teaching Civil law including the law of obligations and civil liability at Hanoi Law University since 2000. The idea for the research emerged in 2003 after the promulgation of Resolution 388.

As I had to teach my students about the liability of the state for wrongful convictions, I had to research and prepare lectures on this issue. Initially, I 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 I was teaching, I found this Resolution had many shortcomings and was very challenging to apply in practice. The topic became more obvious after I had written several papers for the Hanoi Law University Project which aimed to strengthen legal reform processes in Vietnam.

The more I worked on the issues, the more background I obtained and the more interested I 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, I saw that although 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 of state liability and the task to promulgate law had impacted on the quantity and XIÌ State liatility for Compensation in the Development of Vietnam. quality of law.

Moreover, I 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 my thesis in 2010. At the beginning ofthe research, I thought that the SCL had been established with little if any regard for any basic theories.

I 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, I 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.