Protection of the right of damage sufferers in the law on state compensation liability of viet nam = bảo vệ quyền của người bị thiệt hại trong luật trách nhiệm bồi thường của nhà nước của việt nam

VIETNAM NATIONAL UNIVERSITYSCHOOL OF LAW TRAN THI THU HANG PROTECTION OF THE RIGHT OF DAMAGE SUFFERERS IN THELAW ON STATE COMPENSATION LIABILITY OF VIET NAM Specialized in Law on human r

VIETNAM NATIONAL UNIVERSITY

SCHOOL OF LAW

TRAN THI THU HANG

PROTECTION OF THE RIGHT OF DAMAGE SUFFERERS IN THELAW ON STATE COMPENSATION LIABILITY OF VIET NAM

MASTER THESIS

VIETNAM NATIONAL UNIVERSITY

SCHOOL OF LAW

TRAN THI THU HANG

PROTECTION OF THE RIGHT OF DAMAGE SUFFERERS IN THELAW ON STATE COMPENSATION LIABILITY OF VIET NAM

Specialized in Law on human rights

Code No.: 8380101.07

MASTER THESIS

Scientists’ instructor: Dr LA KHANH TUNG

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

With great joy have I written this thesis, but obviously I couldn‟t havedone it all by myself Special thanks to my parents, who I can call whenevernecessary 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 toface meetings for discussions with every step of my research has helped me tocomplete my thesis on time

Special thanks also to the School of Law, where we are alwayswelcome Thank you, the Government of Australia, who has sponsored to thepostgraduate program of human rights supporting us the diversity of learningmaterials 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

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 8 1.1 Rights of the damage sufferer and state liability to compensate 8

1.1.1 Definition, characteristics and elements of the rights of the damage sufferer 8 1.1.2 Definition, characteristic, elements of State compensation 11

1.1.3 Protecting the rights of the damage sufferers in the State compensation mechanism 22 1.2 Protecting the rights of the damage sufferers and State compensation liability in international and regional law 24 1.2.1 Rights of the damage sufferer in international law 24

1.2.2 Rights of the sufferer in the region law 27

1.2.3 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 40 2.1 Period before 2009 40

2.1.1 Regulations of the law 40

2.1.2 Protection of the rights of the damage sufferer in practical in the period before 200948 2.2 Period from 2009 to 2017 49

2.2.1 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 50

2.2.2 The practical of protecting the rights of the damage suffered through the State compensation liability in this period 56

2.2.3 Limitations and reasons 59

2.2.4 General comments 64

2.3 State compensation liability in the period 2017 up to now 65

2.3.1 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 66

2.3.2 Protecting the rights of the sufferer through the implementation of the Law on State compensation liability in the period from 2017 until now 74

2.3.3 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 80 3.1 Requirement from the Communist Party and State to protect the rights of the damage sufferer in the regulations on State compensation liability 80

3.2 Improving the Law on State compensation liability 81

3.2.1 The scope of State compensation liability 81

3.2.2 The compensable damages 82

3.2.3 The procedure to settle compensation 83

3.2.4 Coordination in compensation settlement 83

3.3 Improving the capacity of the official duty performers and the qualification of the public service 83

3.4 Establishing an independent agency to protect human rights

and for the resolution of claims and payment of compensation 84 3.5 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 compensation86 Conclusion of Chapter 3 89 CONCLUSION 90 REFERENCES 92 APPENDIX

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 agenciesICCPR : International covenant on Civil and Political rights 1966Resolution No

1 The urgency of the research topic

After becoming a member of the United Nations (UN), Vietnam hasgradually 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 countrieshave concretized in domestic laws with the recognition of the State'scompensation responsibility for the damages caused by official dutyperformer 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, Vietnamhas promulgated a system of laws, among them are regulations on theresponsibility of the State to compensate for damages caused by an officialduty performer while they are on duty The Constitution 1992 is the firstdocument that clearly recognizes the right to claim compensation for illegalacts of official duty performers during the performance of public duties Thisprovision is further affirmed and concretized in paragraph 5 of Article 31 ofConstitution 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 onState compensation liability (SCL) was approved at the 5th session of the 12thNational Assembly, which came into force on January 1, 2010 This is thefirst specific law regulates on the responsibility of the State to compensationfor damage caused by illegal acts of official duty performers

In addition to the achievements, SCL 2009 has also some limitationsand shortcomings Therefore, on June 20, 2017, at the 3rd session of theNational Assembly XIV has passed the SCL, which comes into force sinceJuly 1, 2018 These are the two leading laws that specifically regulate therights of the damage sufferer due to illegal acts The content of compensatedobjects, scope of compensation liability, criteria for determining damages andcompensation levels, funding, responsible agencies for compensation andespecially principles and procedure to claim for compensation are statedclearer In the process of implementing the SCL from 2010 up to now, itshows that, although the rights of the damage sufferer have been assured,there are still many rights and interests of the damage sufferer that have notbeen guaranteed.

In the process of building the socialist rule of law state as well as toimplement international commitments that Vietnam has ratified, the rights tocompensation should be continued researching One of the ways to improvethe effectiveness of ensuring the right to compensation is to study theeffectiveness 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

2 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 theright of the damage sufferers in the SCL 2017 in particular There have beenmany projects and research only on Law on State compensation liability 2009

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 3).

These two articles is a reference to summarize the development of Statecompensation 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 sometextbooks, 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.R.M Murray,2010, Routledge Revivals, London); (v) Watching the watchdog: China’s State Compensation law as a remedy for procuratorial misconduct Pacific Rim law

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 andinformation about the view, role and the way how to protect the right of thedamage sufferer/ the victim/ the injured party in case human rights areviolated by the official duty performers But until now there is no research onthe right of the damage sufferer in Law on State compensation liability in VietNam Therefore, this is a new work in which analizes the development of theprotection of the right of the damage sufferers through stages in Viet Nam,especially, it compares the protection of right of the damage sufferer betweenSCL 2009 and SCL 2017, thereafter gives some recommendations to protectthe right of the damage sufferers in SCL 2017 in Viet Nam

3 Target of this research

3.1 General target

Based on the theories, regulations and the practical enforcement of Statecompensation, this thesis analyzes and gives commendation on three mainquestions, include: (i) why the right of the damage sufferer is human rights andthe role of the State in protecting and fulfilling this rights; (ii) what‟s regulationsand institutions to protect the right of the damage sufferer in Vietnam, especiallysince SCL came into force in 2010, its achievements and challenges; (iii) how toimprove the effectiveness of implementation of Viet Nam‟s State compensationliability Law and how to solve the limitations arise

3.2 Detail target

In order to achieve the above-mentioned general target, this thesis willfocus on three specific objectives: firstly, to study, evaluate and analyze sometheoretical issues about the right of the victims, State compensation andinternational regulations on that issues; secondly, analyze and evaluate theresults achieved and identify the limitations and the causes of the provisions

of Vietnam State compensation liability in two specific periods (since SCL

2009 comes into force and after SCL 2017 comes into force); thirdly, offeringsolutions to improve the effectiveness of human rights protection in generaland the right of the victims in particular

4 Scope and object of this research

The object of this thesis is the provisions of the law on the rights of thedamage sufferers caused by the official duty performers in Vietnam, withreference to the regulations on the rights of the damage sufferer in somecountries in the world On the other hand, the object of this thesis is also realdamage sufferers and the citizen The scope of this thesis is carried outthroughout Viet Nam from January, 1, 2010 until present

5 The contribution of this research

The topic is a monograph study with scientific contributions in a relativelycomprehensive analysis on regulations in SCL in terms of protecting the rights ofthe damage sufferer and the practical implementation of such regulations instages, thereby contributing to completing the SCL 2017 The contribution of the

thesis grant some new scientific points as follows: Firstly, analyze and clarify the

concepts and characteristics of human rights, the rights of the damage sufferers,the state compensation liability, the meaning of completing the SCL and the

requirements of the law in the completion process of this area Secondly, the

development of Vietnamese law on the rights of the

damage sufferers in State compensation through several periods and point out

the problems and necessary to improve the law Thirdly, review the

regulations of the law and the institution to protect the rights of the damage

sufferers in the world, regional and in some states in the world Fourly,

analyzing the objective requirements and proposing specific solutions applied

in the process of improving the law in this field based on the overview of theVietnamese legal system, in accordance with the requirement of innovation

6 Methodology and research method

The thesis is based on the theoretical basis of Marxism-Leninism, HoChi Minh's thought and the views of the Communist Party of Vietnam on theState and the law, especially the views and guidelines of the Party on juridicalreform, formulation and promulgation the law In addition, this thesis is based

on the theoretical basis of the law on human rights, constitution, civil law andpopular arguments in some countries in this field It uses the method ofdialectical materialism and historical materialism of Marxism-Leninism,combined with specific methods such as methods of analysis, investigation,synthesis, system, survey (in some places in Vietnam in 2019) etc forinterpretation, generalization and practical analysis according to the purpose

of the topic

7 Scientific and practical significance of this thesis

The result of this thesis will provide theoretical and practical solutions

in improving the SCL, raise people‟s awareness in protecting rights to thedamage sufferers It also has a significant role in the integration of theregional and global integration This thesis can be used as a reference for stateagencies in developing, modifying and enforcing legal documents related tothe protection of the rights of the damage sufferers At the same time, it canserve as academic source on education and learning material

8 Thesis structure

In addition to the Introduction, Conclusion and List of References, the main content of this thesis consisted of 3 chapters:

Chapter 1: Some theoretical issues on rights of the damage sufferers

and state compensation liabilities

Chapter 2: Rights of the damage sufferers in the Law on State

compensation liability in Viet Nam.

Chapter 3: Recommendations to protect the rights of the damage

sufferers in State compensation liability in Viet Nam.

Chapter 1 SOME THEORETICAL ISSUES ON RIGHTS OF THE DAMAGE SUFFERER AND STATE COMPENSATION LIABILITIES

1.1 Rights of the damage sufferer and state liability to compensate

1.1.1 Definition, characteristics and elements of the rights of the damage sufferer

1.1.1.1 Definition of the damage sufferer

Up to now, to define individual or organization that is suffered by the

wrongdoing of official duty performers, terms of “damage sufferer”, “victim”

or “injured party” is used differently between countries according to the scope

of State compensation While “victim” is person harmed by criminal acts or attack target [94], “injured party” is the term given to the person who has been hurt by the actions of another [94], “damage sufferer” or “sufferer” is

people or organization who have been damaged To mention the individual ororganization that are suffered by the action of the official duty performer, in

Vietnam the term “damage sufferer” is used in the legal document published

by the Government

In addition to recognizing human rights, to ensure that those rights areexecuted, the law also recognizes the rights of victim in case of violationhuman rights Damage can be interpreted as not being as intact as the initialstate of things after being subjected to external influences Compensation,

from a linguistic perspective, can be understood as "reparation for losses caused" [43, pp 191] Indeed, in case when human rights are no longer

guaranteed by violations from individuals or organizations, the state poses aproblem of compensation for violations of that right To a certain extent, itcan be seen that the rights of the victim is similar to the right to compensation

The right to compensation is a derivative right which only arises when humanrights are violated.

There are differences between the rights to compensation and the rights to

reparation In the English translation of ICCPR, the term "compensation" is used

to indicate the rights of the victim when their rights are violated; however, the

term “repairation” is used instead in the French and Spanish translation In other

words, the term compensation in the English version is a factor of remedy (Seedetail at Article 9(5) of the ICCPR, Article 24(4) of the Convention on EnforcedDisappearance, Article 16(9) of the Migrant Workers Convention, Article 14(7)

of the Arab Charter, Article 5(5) of the European Convention, Section M(1)(h)

of the Principles on Fair Trial in Africa; See Article 8 of the UniversalDeclaration, Article 7) Forms of reparation include but are not limited to:restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition [61, pp 68] The difference between compensation and reparation isthe responsibility of the State to its damage sufferer/ victim, while compensationfrom the state must afford adequate redress to the victim; reparations should beproportionate to the violations suffered [61, pp 68]

Compensation is a special form of reparation provided to victims whenreplacement or recovery is not possible This applies for instance for victims

of rape or terrorism where the experience, psychological consequence or othercannot be erased The financial compensation can pertain to pecuniary(monetary) or non-pecuniary losses Money will be used not to replace butform a monetary substitute for the pre-victimization status But money isinsufficient to provide reparation for victims That is why support servicesmust also be included in a broader definition of compensation [79, pp 3]

Legally, compensation is a form of civil obligation arising fromdamaging acts In civil law, compensation is known as reparation for losses

and remedies caused by violations Therefore, compensation for damages is

"a form of civil liability where the party who causes damage must compensate for physical losses and mental losses for the damaged party” [6, pp 31].

Damage, from the view of non-intact as initial state of things after beingsubjected to external influences, compensation for damage can be understood

as the responsibility to restore the original state of things and phenomena

Thus, the rights of the damage sufferer can be understood as the right toclaim compensation and compensation for damages caused by violations fromindividuals or organizations

1.1.1.2 The characteristic of rights of the damage sufferer

The right of the damage sufferers have the following characteristics:

On the subject, the right to claim compensation of the victim, can

understood in two way, first, it is the right to claim compensation ofindividuals and organizations damaged by the State (applied in some stateslike America, Japan, Korea, China, Israel, France, etc.); second, it is the right

to claim compensation of individuals and organizations damaged by the Stateand vice versa (applied in some states like Canada, Malaysia, Singapore,England, Botswana, Australia, etc.) The approach the subject will affect thescope of compensation

On the object, Czech jurist Karel Vasak (1977) divided human rights into

“three generations” [33, pp 58] The first generation, “civil-political” rights deal

with the liberty and participation in political life, which include the rights andfreedom such as the right to life, freedom of association, expression, the right to

vote, the right to a fair trial The second generation, “socio-economic” human rights guarantee equal conditions and treatment include the rights to work, the rights to public health, the rights to house, etc The third generation, “collective- developmental” rights of peoples and groups held

against their respective states aligns with the final tenet of “fraternity”, which

includes the rights to development, the rights to the self determination of thenations, etc Corresponding to those rights can arise violations

Therefore, the objective of state compensation means the rights of thedamage sufferer which is violated Some typical damages are such as physicaldamage, mental damage, etc Regarding the conditions to ensure the exercise

of the rights of the sufferer, the sufferer who want to exercise their rights ingeneral and the right to compensation in particular, besides the specificconditions, must satisfy two more conditions it that are indispensable Firstly,there must be an institutional that recognizes the right to be compensated inthe Constitution, the separate Law or integrated in other laws Secondly, there

is an institution, which specifies the responsibility of compensation body andagency which has the function to assist the sufferers to implement their right

to compensation The state compensation body can be understood in manydifferent ways under different views From the point of view that the subject

is responsible for compensation, the state compensation body is understood to

be the body responsible for compensation From the point of view that thesubject is responsible to settle the compensation, the state compensation body

is understood to be the competent authority to settle the compensation

1.1.2 Definition, characteristic, elements of State compensation

Thomas Hobbes in Leviathan has stated that, if there is no state, human

life (in the natural state) will "be lonely, poor, filthy, brutal, short-lived” [62,

pp 63]; however, "as a product of humanity, the state also has limitations, trying to be as greedy, seeking for its own interests " [3, pp 18] Therefore, in

order to maintain and promote democracy in the state and in society, the law must

be an effective task in controlling state power Through the law, the rule of lawstipulates various measures to limit the power of the state itself,

thereby preventing the abuse of power by the executive power of the state.The rights of the injured people and sanctions on State compensation whenthe public service executors commit illegal acts is one of the measures to

clearly express the mechanism of “people authorized to the State but do not lose their rights”.

John Locke, said that the State besides the role of the legislature, "they themselves will be the object of the law that they make, as a new binding and have contact with them to take care of things are done for public benefit” [32,

pp 149] In Obligation of Penal Laws, for example, Locke skepticism of the

government‟s misuse of power is growing, but he still insists that thesubject‟s duty is to preserve a peaceful society and not to disturb or endangerhis government and that, so long as a man‟s conscience is free from politicalinterference, he ought to obey the rules of his country [87]

In other words, the regulation of SCL is to show the State'sresponsibilities to violations committed by the official duty performer caused

to the people This regime is a tool to balance the interests of the two parties

“in the social contract”, which are the government - the State and the people.

Ensuring the realization of human rights is the responsibility of allindividuals and organizations and does not exclude the State According to thehuman rights law, The State has obligations in ensuring human rightsexpressed in three specific forms:

Firstly, the obligation to respect This obligation requires States to

recognize, respect, and refrain from intervening, directly or indirectly, on theenjoyment of human rights of rights holders This is considered a passiveobligation, because it does not require States to actively take initiatives,measures or programs to support citizens in enjoying their rights

Secondly, the obligation to protect This obligation requires States to

prevent violations of human rights by third parties This is considered anactive duty, because in order to prevent the violation of human rights of thirdparties, the State must proactively take measures and develop mechanisms toprevent and handle acts violate.

Thirdly, the obligation to fulfill This obligation requires the State to

take measures to ensure, fulfill that every citizen can enjoy the highestpossible human rights [33, pp 71]

1.1.2.1 The perspective of State compensation

From the perspective of damages, State compensation is divided into

02 groups: (i) States regulates damages caused by illegal actions (occupy themajority) and (ii) regulates damages caused by both illegal and legal actions(occupy the minority) such as in Japan and Korea

From the perspective of distinguishing between "reparation" and

"compensation" In the process of execution of its functions, the State may cause

damage and the cause of the damage is resulted from both illegal acts and legalacts Under this perspective, regulations on State compensation is divided into 02main groups: the group of countries where the law on civil servants working onstate capital only regulates the State compensation for the damages caused byillegal acts (this group accounts for the majority) or a group of a few countrieswhere State compensation regulates both illegal and legal acts

From the perspective of an element of justice, the existence of

administration is in everybody‟s interest While every administration employscivil servants, it is clearly that civil servants are human beings and it meansthat that may fail and illegal acts of administration are inevitable Becauseadministration is in everybody‟s interest everybody should take on the risk ofillegal administrative measures Therefore, this is assured when the victims ofillegal administrative measures are compensated by the treasury that has been

“filled” with the taxes of the population [67, pp 7].

From the perspective of access to justice, the right to compensation is that

individuals and organizations suffered from injustice and some damage canhappen in all areas of social life and not limited to criminal proceedings, seekingcompensation / remedy through access to the formal justice system (commonlyknown as the judicial system of State agencies such as investigators, prosecutors,courts, etc.) and informal justice system - which is commonly understood as asystem of customary laws, community-based mediation mechanisms, etc.) This

is a new approach, widely used by many international organizations, especiallythe United Nations Development Program [10]

From the perspective of being a factor of "rule of law" The civil law

recognizes the principle that when the legitimate rights and interests ofindividuals and organizations are violated by other individuals ororganizations, those who commit acts of infringement shall be responsible forcompensation in accordance with the provisions of law Therefore, althoughthe state agency is the subject of public rights, when causing damage, it is alsothe responsibility of compensation The state is like an organization or acitizen and is a legal entity

The state is a public legal entity The state also carries out legal actsand is likely to cause damage to other entities when acting illegally

or beyond its authority And when those acts cause damage to othersubjects, the State also has an obligation to compensate equally asother subjects in society [56]

The principles of the rule of law are also the basis for determining theactivities of the State to the state compensation law Often, state activities can

be divided into legislative, executive and judicial activities Each of this areacan make mistakes Therefore, any field may be the subject to the regulation

of state compensation In fact, some countries stipulate that all three areas,

include legislative, executive and judicial branches are subject of statecompensation, Japan is an example However, with the rule of law on theorganization of state power, the regime and counterbalance, the problem is not

as simple as the conventional way of thinking Most countries agree that thetwo areas of law enforcement and judicial are governed by the law on statecompensation Particularly in the legislative field, the regulation is quitedifferent Some countries like China have completely excluded the legislativedomain from the scope of regulation For most other countries, there is limitedregulation of the application of state compensation regulations on legislative.That stems from the nature of this democratic institution The legislature is therepresentative for voters After being elected, the electors represent the will,aspirations and interests of the voters in the process of reviewing andapproving legislative policies submitted by the executive In addition, in aproxy system, the electors after being elected have full power to express theirwill without depending on the will of the voters The damage caused by thelegislature is to issue policies and laws that are inconsistent with the interests

of the people they represent "The issue of compensation for this institution also means that the voters are not trustworthy and cannot continue to vote in the following elections” [56].

1.1.2.2 Definition of State compensation liability

According to the Encyclopedia of Vietnam, responsibility is:

The concept of moral consciousness and the rule of law represent acharacteristic of personality in the fulfillment of a social obligation Ifthe obligation poses to people the question of realizing and fulfillingthe requirements of society, then the issue of responsibility is wherehuman beings accomplish and complete or fail to fulfill thoserequirements The responsibility is the correspondence between the

operation and the obligation, which is the consequence of humanfree will, which characterizes the conscious activity of man Peopleare increasingly aware of the objective laws of nature and society.When the capacity of natural and social dominance of peoplegrows, the responsibility of people for their behavior also raises.Legally, the consideration of personal responsibility must comefrom the agreement between rights and obligations: the broader theright, the greater the responsibility [10, pp 1020].

In general, responsibility is a constraint in human connections, in whichindividuals or organizations must perform obligations for others or for thecommunity Liability is the type of responsibility that arises on a legal basis,guaranteed by law In a broad sense, liability is an obligation to fulfill all therequirements of the law to maintain society's challenge and development andsuffer adverse consequences when it comes to acts of abuse Social system isprotected by law In a narrow sense, legal responsibility is the consequence ofadverse consequences when unlawful acts are committed

According to the principle of determining responsibilities, people whocommit unlawful acts infringing upon the legitimate rights and interests ofothers causing damage shall be liable to pay compensation In the relationshipbetween the person causing the damage and the sufferer, there are cases wherethe person causing the damage is in a very special position - they are officials,civil servants of the State and they causes damages while performing the tasks

on behalf of the State The state shall be a "special entity of political power"

that performs management functions to maintain social order throughofficials, civil servants in state agencies In the process of performing publicduties, public functions may cause damage to any individual or organization

Liability for compensation is a kind of legal responsibility that has been

existed when the State and the law were established Through thedevelopment of stages, the nature of the liability for compensation has beenchanged markedly [6, pp 8].

In the history, states of common law and civil law have acknowledged theview of national immunity and the idea of the king cannot do anything wrong(Le Roi ne peut mal faire) and therefore the State is not responsible for all of

their activities Specifically, before the 19th century, it was considered “a period which deny wholly the State compensation liability” [63] Therefore, sufferer/

victim do not have any rights to claim compensation caused by the official duty

performer as the theory of State immunity is applied In other words, "the king and the ruling apparatus never make a mistake and cannot be sued" [27, pp 12] Since the end of the 19th century and especially in the early 20th century, the

State's immunity has begun to be limited and some laws recognized the right tocompensation by the State In the world, some countries, namely, the Americans

and the Philippines applied the principle of State's immunity "The United States cannot be sued without the approval of this country" [26, pp 262] However, that does not mean that these States have no obligation to compensate for damages.

One of the important principles of the rule of law is that the State can only dowhat the law allows The supremacy of the law in this case is a tool to limit thepossible abuse of power by powerful subjects It is because of this principle that

the doctrine of the right of immunity from the State is not absolute "Immunity from hearing can only be used when the state acts with the powers of national sovereignty The state or officials of the state must prove that the alleged action

is fully in compliance with the Constitution or legal documents When these limits are exceeded, state exemptions cannot be applied” [2] From the end of the 20th century and the beginning of the 21st century, there has been an official

recognition of the State's compensation liability in both international and laws

of some countries in the world.

Compensation for damages incurred to citizens by civil servants is

considered as “a basic pillar of contemporary democratic state, because it guarantees acting by public authorities in compliances with law and deepens trustfulness It is also said that the state of the abovementioned institution indicates the level of development of democracy” [58, pp 179] Violations will

be punished by the compensation liability of the public entities or even by theindividual liability of the civil servant Such pecuniary and disciplinary is toreduce abuses power and in fact constitutes a guarantee of democratic stateruled by law [58, pp 183]

Thus, the State's liability for compensation is a type of legalresponsibility in which the State is responsible for compensating for damagescaused by illegal acts of public service executors

1.1.2.3 Characteristics of State compensation liability

Therefore, in addition to the characteristics of general liability such as:being applied by competent state agencies; being apply to those who commitsviolence; always causing consequences to the people being applied; beingguaranteed to be executed by state enforcement, the responsibility tocompensate for damages also has its own characteristics like the arisingconditions; consequences and the responsible subject In addition, Statecompensation has different characteristics compared to the usual liability forcompensation in common civil damages, as follows:

The State's liability to compensate for damage is a civil liability for non-contractual damage compensation according to the principle of “people who cause damage must compensate for damage to the victims” [55] The

state participating in legal relations it has one of two qualifications, one is,and as a common subject and the other is the subject of public power

Accordingly, the legal relations that the State participates as the subject ofpublic power are not contractual relations The legal relations that the Stateparticipates in and on behalf of public power must be legal relations whichrelated to the implementation of activities belonging to the main functions ofthe State In the course of implementing these activities, the State causesdamage to individuals and organizations, the State shall have to compensate.Compensation is not due to breach of contractual obligations, therefore, Statecompensation for damages caused by public activities is the responsibility tocompensate for damages out of the contract.

State compensation is not only the liability to compensate the damage

of the property but is also the responsibility to restore mental losses to peoplesuffering from wrongdoer of the official duty performer Thus, thisresponsibility includes property liability (in case of damage to property) andresponsibility for restoring mental losses (in case of infringement of honor,dignity and reputation)

The element of “public service” in relation to the State compensation.

State compensation shall only applied in cases where the State causes damage

to individuals and organizations when acts of illegal public acts are committed

in the name of the public – it means that the State shall compensate in case ofdamage when official duty performers perform official duties Civil rightsalways go hand in hand with the State's obligation to ensure citizens exercise

their rights It is important to understand the concept of “public service”,

because this is one of the factors that determine whether or not it is Statecompensation From the perspective of socialization of state managementactivities, according to which many organizations (not state agencies andorganizations of the State) in the society are assigned a certain number ofmanagement tasks is public service or not Some scholars have affirmed that it

is necessary to consider acts of official duty performers that are not organic parts

of the state apparatus, but State also has the responsibility to compensate for

damages “Public service” or to say it fully, is a public act, which is a direct act

or to perform the main function of the State as a function of managing all aspects

of social life and at the same time performing Organizational functions serve thegeneral needs of non-profit society Public service activities by those responsible

on behalf of the State shall comply with the provisions of law and be protected

by law to serve the interests of the people and society Only acts directly or inorder to perform the State's management functions are considered as officialduties Thus, for acts not aimed at implementing the state management function,they are not considered as public services

1.1.2.4 The basic elements in the relationship of State compensation liability About the subject of the relationship of State compensation liability.

There are two parties in this relationship which are the party who causesdamages – the State and the sufferer who is the victim, it can be individual ororganization or other object The compensation party is different in countriesthere is only one agency who represent for the State compensate to thesufferer, while in other country, this responsibility belongs to a specificagency However, it must be affirmed that the party with responsibility isalways the State and the agency responsible for compensation shall not act onits behalf, but in the name of the State, to carry out the responsibility tocompensate for damage as well as on behalf of the State when performing itsduties According to the Japanese Criminal Compensation Law, onlyindividuals are entitled to compensation The right to compensation isprovided for provisions to those who are damaged, whereby legal entities may

also suffer losses due to unlawful acts of persons on duty “In the literature

we can see that, this is a liability for so-called indirect damages, so damages

to directly damaged entity which is a result of an act or omission and by that

is direct to the interests of the third persons” [58, pp 184].

In the progress of accession to international integration, the statecompensation liability for damages caused to enterprises shall be applied Thiswill show the goodwill of the State in calling foreign investor to the country andgive them a legal guarantee to claim for compensation in case the official dutyperformer causes damages to their enterprise On the other hand, this is alsoconsistent with the theory that taxpayers are guaranteed by the State Amongthem, businesses are also the subject of the protection of the State They invest inbusiness and pay taxes for the State When the state causes damage toenterprises, it is necessary for the state to be responsible for compensation

Objectives of State compensation liability In this legal relationship, the

object is the physical or mental benefits that the legal subjects desire toachieve when participate in legal relations In civil relations, objects are thingsthat the subject as mentioned above interested in, want to achieve or haveinfluence on when participating in civil relations Therefore, the object ofState compensation is the rights, legitimate interests of citizens and theinterests and prestige of the State because when any unjust case is wrong, notonly citizens are the only one who suffered from losses but also the State willhave damages, which is the reputation of the State

On the one hand, the State must compensate materially andspiritually to those who are suffered, on the other hand, the State'slosses seem to be invisible but the actual consequences can still beeasily seen That is the prestigious decline of the State, the erosion

of people's confidence in the State [36, pp 33]

Conditions for state compensation liability First of all, conditions for

arising liability to compensate for damage are understood as a combination of

the elements that constitute the liability for compensation Secondly, Statecompensation liability would be granted if three prerequisites are fulfilled: (i)

an illegal act of an official duty performer; (ii) actual damage arises to thedamage sufferer and accordance with the scope of State compensation, and(iii) there has to be a causal link between the breach of the wrongdoing of the civil servant and the damage suffered in actual

1.1.3 Protecting the rights of the damage sufferers in the State

In 2009 report on “Implementing the Responsibility to Protect”, UN General Ban Ki-moon explained that Responsible to protect rests on three

Secretary-„pillars‟, which are (i) the responsibility of every state to protect its own

population from “genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement”; (ii) different forms of international assistance – technical, financial and military – to help countries meet these

obligations and (iii) coercive measures by outsiders, ranging from economicsanctions to direct military action [66] In domestic view, to protect the rights ofthe damage sufferer, it is necessary to have mechanism as well as institution,namely legal

instruments and offices/ bodies who are responsible for protecting the rights

of the damage sufferers Belonging to that requirement, in many countries,regulations on State compensation was promulgated

State compensation has an important role both in political and legal

meaning Politically, State compensation is an expression of rule of law The

purpose of this Law is twofold: to guarantee the rights of individuals and legalentities to obtain compensation; and, to encourage state officials to exercisetheir powers lawfully All acts of infringing upon the legitimate rights andinterests of individuals and organizations shall be handled according to theprovisions of law without discrimination of subjects caused by the illegal actsregardless it is organizations or individuals The recognition of Statecompensation and the establishment of a mechanism to ensure this legalresponsibility is an effective tool to implement the rights and legitimateinterests of citizens Therefore, the development, promulgation andimplementation of laws on State compensation are an essential task to achievethe goal of building a socialist rule of law Through the mechanism of Statecompensation, on one hand, the damage sufferer who is the victim of thewrongdoing of the official duty performers has the right to claimcompensation for the material damage and mental losses they have suffered

On the other hand, official duty performers will raise their awareness andresponsibility while performing their duties, contributing positively toimproving the effectiveness of activities while they are on duty Finally, it

will contribute to the process of building a good governance state Legally,

State compensation is an effective legal mechanism to ensure theimplementation of the right to compensation of the organizations andindividuals regulated in the Constitution and at the same time contribute to

maintaining the stability of public activities In the State compensationmechanism, the State is the subject of compensation that represents theofficial duty performer who caused damage On the basis of recognition ofState compensation, through legal instruments, the State specifies criteria fordetermining compensation responsibilities, determining compensateddamages, responsibilities and procedures for settlement of compensation Onthe other hand, State compensation mechanism has a meaning to ensure thestability of public activities In cases where official duty performers makeunintentional or intentional errors while performing official duties, whichcause damage to individuals and organizations, the State shall takeresponsibility for compensation Furthermore, as the subject of nationaltreasury management, the State fulfills the obligation to pay compensationshall be easier for the damage sufferer to receive the compensation amounts.With these meanings, the legal mechanism of State compensation marked avery important step to the improvement of the Vietnamese legal system in thecontext of building a socialist rule of law state and suitable with the currentinternational integration of Vietnam.

1.2 Protecting the rights of the damage sufferers and State compensation liability in international and regional law

1.2.1 Rights of the damage sufferer in international law

The victim‟s right to access compensation was first recognized by theinternational community in 1985 when the United Nations General Assemblyadopted the Declaration of Basic Principles of Justice for victims of Crimesand Abuse of Power [96]

Up to now, on a global scope, “there is not yet an international treaty that specifically regulates on State compensation liability There are only some regulations on these issues in international treaty, in the form of

damage compensation principle” [3, pp 168] In 2001, the International Law

Commission presented to the United Nations General Assembly the draft ofConvention on National legal responsibility for acts against international law.The content of this draft contains provisions on liability, which is responsiblefor compensating damages to individuals and legal entities when infringingupon legitimate rights and interests caused by the State, state representativeagencies or other entities representing the state

However, since this document has not been approved until now, theresponsibilities under it are made for individuals and legal entities but in fact

it regulates the responsibility between States and States Although it is not aninternational convention regulating on State Compensation in terms of therelationship between the State and citizens, it is still considered a valuablereference for countries to build their domestic law At the global level,paragraph 5 Article 9 ICCPR, stipulates the right to claim for compensationfor victims of illegally arrested or detention In criminal proceedings, in thecase of wrongful actions, clause 6 Article 14 ICCPR has specified the right tocompensation of victims In addition to ICCPR, international conventions onhuman rights also address this issue, in particular: paragraph 15 Article 14Convention on Torture and other forms of cruel, inhuman or degradingtreatment or punishment character 1984; Point g, Clause 1, Article 8,Convention on the Rights of the Child 1989; Article 6 of the InternationalConvention on the Elimination of All Forms of Racial Discrimination 1965;Paragraph 9 of Article 16, Clause 6 of Article 18, Clause 5 of Article 22 andClause 2 of Article 71 of the International Convention on the protection of therights of all migrant workers and their family members 1990; Clause 2 ofArticle 8, Clause 1 of Article 19, Clause 2 of Article 20, Clause 3 of Article

23 and Article 24 of the Convention on the Protection of Everyone from the

Forced disappearance 2006 stipulates the right to compensation of eachsubject belonging to the scope of each convention.

In order to practice the right to compensation, the United NationsHuman Rights Committee and the Committee of some Conventions wasestablished with the main jurisdiction in the implementation of human rightsconventions There are many ways for the Committee to perform its functions,including the function of receiving complaints and making recommendations.Receiving complaints and making recommendations of the Committee is one

of the measures to help the victim to practice his or her right to compensation

In particular, for violations of private life, Guideline No 5 ICCPR also

provides specific provisions for member states to establish “independent bodies to compensate for these violations” [35].

In addition to recognize the right to compensation in international treaties, the rights of the victims are guaranteed through the establishment and jurisdiction of specific agencies In order to protect human rights in general and the rights of the victims in particular, there are two main types of agencies that perform this function

on a global scale: firstly, agencies are established based on the United Nations

Charter This mechanism consists of 05 main bodies of the United Nations: General Assembly, Security Council, Economic and Social Council, International Court of Justice and Secretariat (Trusteeship Council but it suspended operation on 1 November 1994) All of these agencies have the responsibility to protect and

promote human rights Secondly, agencies established based on human rights

conventions This mechanism is based on Board of Supervision of International Human rights Conventions and it was established according to that Conventions (except for the Commission on Economic and Social Rights and culture which was established under a Resolution of the United Nations Economic and Social Council) [33, pp 494-502].

1.2.2 Rights of the sufferer in the region law

In some region of the world, there are mechanisms to protect and promotehuman rights in general and the rights of sufferer/ victims in particular (atpresent, institution to protect and fulfill human rights is established in 3 regionswhich are Europe, North America and South America)

1.2.2.1 In Europe

In Europe, many documents are issued as a basis to protect humanrights, among them, to protect the rights of people suffered by illegal acts ofofficial duty performers there is the Convention for the Protection of HumanRights and Fundamental Freedoms (1950) complemented by 16 AdditionalProtocols One of the conditions for being a member of the European Council

is to join the European Convention on Human Rights At present, all 47Member States of the Council, including the United Kingdom, have signedthe Convention

Article 5 (5) of the European Convention provides that “everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation” To explain this, Article

3 Protocol No 7 to the Convention for the Protection of Human Rights andFundamental Freedoms extends the list of rights to protect under the Convention,include the right to compensation in the event of a miscarriage of justice.Besides, precedent, one of the sources of law has also regulated in case ofcompensation In the case of Francovich, the Europe Justice court has stated that

the principle “individuals have the right to ask member states to compensate for violations of Europe Council” [89] The duty of a Member State to compensate

is subject to three conditions Firstly, the result prescribed by EC law must entailthe grant of rights to individuals Secondly, the content of the rights must beidentifiable on the basis of the legal

instrument Thirdly, there must be a causal link between the breach of theMember State‟s obligation and the harm suffered by the injured party [89].Another known case is the case of Brasserie and Factortame III [62] Indeed,the Court ruled that the member state shall compensate for the damage caused

to the victim because national law violates the terms of the internationaltreaty, through the interpretation of Article 215 (2) (now it‟s Article 288 (2)

of the Treaty) on the expression of the basic principle of state responsibilitiesrelated to the law of the member state Although this access to the issuesseems strange, the Court explains that the member state has the obligation toobey the law of the public [62, section 36]

In order to practice this rights directly or indirectly, some institutes wasestablished One of those is the European Court of Human Rights; its jurisdiction

is to decide complaints submitted by individuals and States concerning violations

of the Convention for the Protection of Human Rights and FundamentalFreedoms, which principally concerns civil and political rights It cannot take up

a case on its own initiative [83] It is considered as a “super national Court; because it is the last court a person can seek when they feels his or her rights is violated by a member state of the Convention” [34, pp 117] While European do have the rights to sue and complain, the Court is responsible for classifying and

assigning them to the Member Courts, which will then be reviewed by aCommittee of three judges This Committee may decide to accept or not If itmay be approved by the Commission, the complaint is reviewed by a Council.For example, in 1999, about 60,000 cases were filed in the Court, the number ofcases increased to about 100,000 in 2007 and over 120,000 in early 2010 In

2016, more than 38,000 cases were sent to the Court [81] To a certain extent, the

European human rights regime also appears to be “more rigorous and effective than the UN human rights mechanism” [33, pp 359] In some

member States administrative fees are charged for applications for Statecompensation from 9 € to 170 € [80, pp 16].

1.2.2.2 In Inter America

The Inter-American system of human rights began with the AmericanDeclaration of the rights and duties of man, adopted in 1948 together with theCharter of the Organization of American States (OAS) Some importantdocuments in the protection of human rights include the aforesaid Declaration

1948, the American Convention on Human Rights (1969/1978), etc Institutionsare established to protect human rights in general include the Inter-AmericanCommission on Human rights, the Inter-American Court of Human Rights(Inter-American Court of Human rights) While Europe's human rightsmechanism allows individuals do have the right to lodge complaint directly tothe regional Human Rights Court, the human rights mechanism of the Inter-American system is carried out by the Human Rights Commission to the Court

of OAS member country Although it was formed very early and is developed,

however, the mechanism of Inter-American human rights “is quite complicated, with overlap of functions and functions among agencies; therefore, the actual effect of this mechanism is somewhat limited” [33, pp 364].

1.2.2.3 In Africa

Africa's system of human rights documents has been established since

1981 with the adoption of the African Charter on Human rights and the rights

of peoples Up to now, all 53 member states of the African Union, replaced bythe Organization of African Unity since 2001, both of them have ratified theAfrican Charter Institutions were also established to protect human rights,such as the African Commission on Human Rights, the African Court on

Human and People's Rights The African Charter “has created a legal framework for the promotion and protection of human rights, the rights of

regional peoples” and its institutions to ensure its implementation and have

contributed to promoting in that area [57]

1.2.2.4 In Asia

In Asia, although efforts have been made, it has not been possible topass a formal document on regional human rights or the establishment of anAsian Commission on Human Rights

1.2.3 Rights of the damage sufferers in some countries of the world

At the United Nations World Human Rights Conference in Vienna

(Austria) has insisted on “reaffirmed the important and constructive the role of national agencies in promoting and protecting human rights" and "encourage States to establish and consolidation of national agencies for the promotion and protection of human rights” [42, pp 17] Currently, in many countries of the

world have acknowledged the right to compensation of victim due to illegal acts

of official duty performers and established institutions to fulfill these right

1.2.3.1 In Australia

Individuals wrongfully convicted and imprisoned do not have a commonlaw or statutory right to compensation in any Australian jurisdictions other thanthe Australian Capital Territory However, a state or territory government maychoose to make an ex gratia payment either on its own accord or as a result of arequest by a party for such a payment [75] The Human Rights Act 2004 ofAustralia stipulated that an individual who is wrongfully convicted of a criminaloffence may seek compensation The individual must have been convicted of acriminal offence by a final decision of a court; suffered punishment because ofthe conviction; had the conviction reversed (or been pardoned) on the groundthat a new or newly discovered fact shows conclusively that there has been amiscarriage of justice (Section 23) The right to compensation of the sufferer isrecognized through specific provision

of compensation responsibilities of state agencies One of those agencies is theDepartment of Home Affairs In case the Department of Home Affairs causesfinancial loss or other damage to the person, then the sufferer has the right toclaim for compensation The victim has the right to claim compensation fordamages caused by legal liability, specially, cases arising from the Federalgovernment or due to administrative defects However, to get compensation,Australian law also specifies procedures to claim for compensation Such as, inorder to make a complaint or claim to the Department of Home Affairs, thesufferer must complete the online application form, which is publicly posted and

is a unified form for all types of complaints To fulfill that form in detail and toask for assistance and guidance in implementing this right in common,Australian law also allow that victims can freely choose independent consultingservices to exercise their rights or to get help from some agencies One of thoseagencies is the Ombudsman Ombudman was established and one of its functions

is to help resolve complaints It does not make a new decision; they ratherconsider the way a decision is made and make recommendations on how thedecision or process could be enhanced It is the oversight body when it comes tocomplaint They can assist to resolve people complaint by investigating theprocess if the agency does not change their decision or offer a better explanation

of the decision Moreover, they will help people to make a complaint to theagency the complaint is about In every case, victims shall come back to theOmbudsman if they not satisfied with the result Especially, the Ombudsmanalso receives complaints that they do not have the power to assist with For thesecases they will refer people to the right complaint-handling body, for them tohelp resolve his or her complaint

[88] The recognition of the right to appeal and the responsibility of assisting thepeople to exercise their right to complain is one of the measures to implement

the right to claim compensation The reason is that through complaints toidentify illegal acts of official duty performer is the grounds for the victims toexercise their right to claim compensation.

1.2.3.2 In the United States of America

The law system in the US, in its early forms, came from Great Britain

It goes way back to the original 13 colonies when the first settlers broughtwith them a set of rules and principles that they were going to practice in anew society Therefore, at both federal and state levels, the law of the UnitedStates was mainly derived from the common law system of English law Theright to compensation is recognized directly and indirectly in United States ofAmerica law The Constitution of the United States 1787 does not directlystipulate the right to compensation, however, it acknowledge the rights ofpossession of its citizen In many other important legal documents, the right tocompensation is directly regulated, including the Declaration of HumanRights 1789 and especially the Federal Tort Claim Act This law stated thatthe US government is responsible to compensate for damages caused byfederal government officials while they are on duty [71, Article 2672] Thefederal government, the District of Columbia, and 35 states havecompensation statutes of some form The following 15 states do not: Alaska,Arizona, Arkansas, Delaware, Georgia, Idaho, Kentucky, New Mexico, NorthDakota, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota,and Wyoming [84] In 1946, the US Congress promulgated the Federal Tortclaims Act, it has provided for compensation to individuals injured physically

or otherwise by the actions of other private persons, including artificial

“persons” such as corporations whose employees cause the harm Significant

parts of this liability fall within what is known as the law of torts However,when the personal injuries are inflicted by the government