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The time limits for claims are stipulated in Article 5 of the SCL. It provides that the claimants must request compensation between two years from the date competent state agencies issue the documents affirming that the officials’ acts are unlawful, or from the

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date of legally effective judgments affirming that the claimants fall within the scope of compensation liability in respect of criminal proceedings. This is consistent with the provisions of the statute of limitations in civil proceedings (Article 159 Civil Procedure Code 2004, Article 607 Civil Code 2005). However, because of the limitations in asking for a valid document affirming the unlawful action of the state officers, the provision on time limits claiming for compensation is inappropriate as shown below.

As indicated, if the claimant does not have a valid document, the agency which is liable for settling the claim must refuse to accept the claim. In order to obtain such document, the claimant must make a complaint or denunciation under the Law on Complaints 2011 and the Law on Administrative Procedure 2011. Nevertheless, according to the Law on Complaints, the time limit for making a complaint is 90 days from the date of receipt of an administrative decision or notification of an administrative act.494 According to the Law on Administrative Procedure, the time limit for claims before the Administrative Court is: one year from the date of receiving of administrative decisions, administrative acts and disciplinary decisions of dismissal; or 30 days from the date of receipt of the decision to settle complaints about decisions which settle case related to competition law.495 As a result, after the time for complaint to the government agency (90 days) or to a court (one year), has expired, the claimants cannot claim as they are not able to obtain a valid document from the authorized agencies, a precondition for state liability.

Similarly, regarding the enforcement of civil judgments, under the Law on Enforcement of Civil Judgments, the period for complaints or denunciations of the decision and behaviours of the heads or executors of civil enforcement are defined as follows in Article 140:496

- For decisions and acts of enforcement before applying security measures, coercive measures is 15 days from the date of receipt of the decision or knowing of the act;

- For the decision to apply freeze the account measures [sic] is three working days from the date of receipt of the decision;

494_{The Law on Complaint 2011 (Vietnam) Art 9.}

495_{The Law on Administrative Procedure 2010 (Vietnam) Art 104.}

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- For decisions and act [sic] on the application of other insurance measures is 10 days from the date of receipt of the decision or knowing [sic] act;

- For decisions and act [sic] on the application of coercive measures is 30 days from the date of receipt of the decision or knowing act;

- For decisions and behaviour after the application of coercive measures is 30 days from the date of receipt of the decision or knowing act.

In other laws, but also in the SCL, there is conflict between provisions. Article 22 provides that the claimants have the right to make a claim for compensation to the court within 15 days: (1) after the date of expiration of the time limit for settlement compensation where the relevant agency has not issued any compensation decision, or, (2) from the date the state agency issues the compensation settlement decision with which the claimant does not agree. According to this provision, the claimant cannot bring the case to the court if the decision resolving the compensation claim comes into force. The period is so short that many claimants may be prevented from continuing with their claim, making the law ineffectual. In addition, in cases where the relevant state agency does not make any decision to pay compensation, if the claimants do not bring the case to the court within 15 days from the date that the state agency would have to issue a decision, they can no longer make a claim for compensation to the court. This is obviously an inappropriate provision because in this case the claimants often do not know the date of the decision. They passively wait for the decision. Moreover, 15 days is too short a period for claimants to prepare a claim to take the case to courts, particularly given the documents which must be filed.

The time limitations prescribed are very short. They have a negative effect and in practice nullify the provisions of the Law. Therefore, the suggestion of removing the condition which requires a valid document affirming the wrongful action or judgment of the state officer, will resolve problems associated with the limited time period within which to claim.

Moreover, many legal experts stated that the time limit for claims of two years from the date competent state agenciesissue the documents affirming that the officials’ acts are unlawful, or from the date of the judgment affirming that the claimants fall within the scope of compensation liability (in case of criminal proceedings) come into force, is inappropriate and inconsistent with the Civil Code, Civil Procedural Code and

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other laws.497 According to the Civil Code, the limitation for damages claim is two years from the date when the legitimate rights and interests of individuals and legal persons have been violated.498 Moreover, the Civil Procedural Code provides that the limitation for claiming compensation is two years from the date of individuals, agencies, and organizations learn that their legitimate rights have been infringed.499 Therefore, Ms Hoan, from the Supreme People’s Court, said that the claimants often do not receive the documents on the day they are issued. She suggested that the limitation should start on the day the claimant receives or should be learned to have received the document.500 Ngo Van Hiep, attorneys501 stated “In some cases the state authorized agency has issued the document affirming the unlawful act but because of some reasons sufferers may not have received or have been delayed in receiving the documents and the limitation may have expired”.502

Dr Nguyen Van Cuong who is Deputy Director of Institute of Trial Science, Supreme People’s Court, pointed out that:503

Trong trường hợp văn bản xác định hành vi trái pháp luật của người thi hành công vụ là bản án, quyết định của tòa thì bản án, quyết định của tòa chỉ có giá trị thi hành khi đã có hiệu lực pháp luật. Cụ thể, sau 15 ngày (đối với quyết định sơ thẩm) và sau 30 ngày (đối với bản án sơ thẩm) mà không có kháng cáo, kháng nghị thì mới có hiệu lực pháp luật. Do đó, cần sửa đổi thời hiệu yêu cầu bồi thường thiệt hại trong trường hợp này là hai năm kể từ ngày bản án, quyết định của tòa có hiệu lực pháp luật.

[In case the valid document affirming the unlawful action of the state officer is a court’s judgment or decision, the court's decisions or judgments can only be validly implemented when it has legal effect. In particularly, it will have legal effect after 15 days (in terms of the First Instance decision) and after 30 days (in terms of First Instance judgment) which have not been appealed by

497 _{Quyền yêu cầu Nhà nước bồi thường khó thực hiện, Tin moi [It is difficult to enforce the} rights to state compensation] 17/05/2013 <http://www.tinmoi.vn/quyen-yeu-cau-nha-nuoc-boi- thuong-kho-thuc-hien-011265187.html>

498_{The Civil Code 2005 (Vietnam) Art 607.}

499_{The Civil Procedure Code 2004 (amended 2011) (Vietnam) Art 159.}

500 _{She is also an interviewee.}

501 _{He is working for Hiep and Partnership law firm.}

502 _{Quyền yêu cầu Nhà nước bồi thường khó thực hiện, Tin moi [It is difficult to enforce the} rights to state compensation] 17/05/2013 <http://www.tinmoi.vn/quyen-yeu-cau-nha-nuoc-boi- thuong-kho-thuc-hien-011265187.html>

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clients or protested by the procurator. Thus, the limitation should be changed in this case to the following: two years since the date of the court’s judgments or decisions have legal effect.]

Interview analysis

In respect of the limitations on claims, many researchers from the Legal Science Institute and State and Law Institute and officers working for the Department of State Compensation responded that a limitation of two years for compensation claims is appropriate; it is enough for the sufferers to collect evidence and make claims. Furthermore, it is consistent with the duration provided by the Civil Code and Civil Procedural Code. Some claimants argued that this time is too short because the procedure for claiming state liability for compensation is complex and time consuming. Thus, it should be longer than for general civil liability for compensation. Many of them discovered the deficiencies of the starting point of the time limit and the conflict between the SCL and other laws as analysed above. They suggested that this provision should be reformed to ensure a synchronous application of the law and make implementation effective and practicable.

5.7. Conclusion

In short, the procedures and mechanisms used to resolve state compensation claims are different from those of other civil liabilities. They are provided for under the SCL and other laws. By analysing the relevant provisions, the literature and interview results, this chapter shows that the procedures for the settlement of compensation claim are complex and frustrating. They are a waste of time, money and effort. Besides, the mechanisms for claiming are ineffective and lack objectivity. Many provisions are obscure and inappropriate. Together with the deficiencies of the substantive law shown in the previous chapter, the limitations of the procedures and mechanisms are significant barriers which prevent the claimants from protecting their rights. Those limitations clearly reflect that the provisions for resolving state compensation are neither just nor fair, and therefore need to be reformed. They also reflect the general problems in Vietnam indicated in Chapter 1 in 1.2.3 which are: poor drafting of legislation, lack of judicial independence, and absence of blueprinting policies.

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Chapter six: Implementation of the SCL -

Achievements and failings and their causes

6.1. Introduction

As indicated in Chapter 4, the promulgation of the SCL 2009 reflects the expectations of the VCP, the Vietnamese Government and the citizens in terms of further reform and development. It is a tool for achieving the objectives of building a rule-based state and protecting the basic rights and interests of citizens and their human rights. It is also considered to be an effective key to improving the capacity of the state apparatus, and the quality of the work of state agencies.

In order to evaluate the legitimacy and effectiveness of the SCL in practice, it is necessary to examine its implementation. The SCL and the other legal instruments implementing it cannot be separated from their context – Vietnamese society including its economy, politics, cultures, traditions and customs. This chapter considers the implementation of the SCL in Vietnamese society by reviewing the literature, government and media reports, and the interview results, especially the experiences of claimants. Two cases involving the previous law504 are included to demonstrate the typical and ongoing problems with the present law. These cases have not yet been settled and they are to be resolved under the transition provisions of the SCL. The cases have been used to better reveal the reality of the enforcement of the SCL, especially in the delays faced. This chapter shows the achievements of the SCL, and concludes with a reflection on possible solutions to the problems found.