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As indicated in Chapter 1, increasing legislation extending state liability was enacted in the late 20th and early 21st centuries. Also, there has been criticism of those countries which do not have a separate law providing for this. A number of scholars have mentioned the need for clear legislation to assist those who are seeking state compensation and to create uniform compensation programs within states.353

Civil wrongs committed by state officials are a common problem in Vietnam. They cause damage to organizations and individuals anywhere and anytime across most areas of state activities.354 There are many reasons for such problems. First, the limited capacity of state officials makes it difficult for them to carry out their duties. They lack many resources enabling them to undertake their duties effectively. Moreover, because of corruption, there are some officials intentionally taking wrongful actions which benefit one person but which harm the other. There is not yet a comprehensive system of law which is capable of reducing or eliminating this problem, causing both anger and disappointment in citizens.355 _{Also, as mentioned in the context of the project in Chapter} 1, according to an evaluation by the MOJ, the former provisions in Vietnamese law were too general, and inadequate to support applications. Hence, the promulgation of the SCL has been valuable as an important legal resource to resolve cases related to state compensation. It is the first time that Vietnam has had a separate law which acknowledges that claims for state compensation is legitimate. It provides the principles, grounds, methods and procedures for claiming state compensation. Although the SCL has limitations as indicated later in this thesis, it also represents progress as shown in Chapters 4 and 6. The SCL has brought gratification to some citizens when they have received remedies to restore property, and it has encouraged others to affirm their rights as protected people.

Moreover, as outlined above in Chapter 1, Vietnam is building a state based on the rule of law in which the SCL is an important instrument. One of the important principles for a state governed by the rule of law is that while the state may do whatever the law allows, the state cannot be above the law. As with other subjects in society, all activities of the state must comply with the Constitution and the law. The right to claim

353 _{Dioso-Villa, above n 75, 5; Robyn Lincoln, and Carol Morrison, ‘Rights of the wrongfully} convicted’ (2006) (12) (2) The National Legal Eagle.

354 _{Nguyễn Minh Đoan, above n 314.} 355 _Ibid.

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compensation in Vietnam is a fundamental right of citizens recognized in the Constitution and law. In addition, in a state based on the rule of law, all subjects are equal before the law; the state cannot be above any citizen or legal people. When the state causes damage, the state must equitably compensate as is the case with other subjects.

The SCL 2009 contributes to the legal enforcement process in Vietnam. It enhances the accountability of state officials, limits the abuse of power and improves the operating efficiency of state agencies. This also helps to prevent corruption and bureaucratic harassment which still exists in some administrative agencies and public servants.356

The SCL has real meaning for the Vietnamese people. All of the interviewees, when asked, confirmed that the promulgation of the SCL is necessary, especially in Vietnam where wrongful actions by state officials are commonplace and the Law is significant to them as state officials, lawyers or clients. One officer from the Department of State Compensation said that “besides being a tool to protect the individual’s right, the SCL created a transparency legal tool for state management of state liability for compensation and it also made a change in the perceptions and behaviours by enhancing the accountability of state officials”. Moreover, one officer from the Law Committee of NA stated that “this Law has a great significance in building a more democratic, civil society in which any individual, group or entity are treated equally under the law. It is also a legal foundation for determining the state liability and contributes to the restriction of wrongful actions of the state officials”. As for the claimants, although they are still cautious of the effect of the Law, they see that the Law has meaning for them. They believe that the SCL can be a tool to protect individuals, as an important legal instrument by which to sue the state when they suffer damages or injuries. The Law initially gave them greater confidence in the state. That is why all of the participants ranked the enacting of the Law among the ten significant events in the reform of the legal system. For some, it was the second most important thing only behind the revision and amendment of the Constitution itself.

In short, it can be said that this recognition of state liability in Vietnam marked a significant change in thought and awareness. For many reasons, this potentially creates

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greater fairness and equality, making the whole of society more just. It brings benefits to the people, especially those who have been damaged by a wrongdoer regardless of who he or she is.

3.7.Conclusion

State liability is not a traditional concept in law and therefore does not have a uniform definition. In some countries, it is seen as government responsibility or liability.357 In others, it is understood as being crown liability358 _{or state liability for compensation}359_. With any concept, the state liability (crown or government liability) is essentially the same and has the same significance. In Vietnam, the legal system including state liability law has seen several periods of development based on the country’s Buddhist- Confucian, Chinese, French colonial and socialist heritage with a move toward a mixed market economy. State liability under current Vietnamese law can be described as a civil liability to which the general principles of civil liability can be applied. Additionally, it has the following distinctive characteristics: (1) the person who causes the damage is a state official; (2) the defendant is the state itself and not individual state officials or state agencies; (3) monetary compensation is taken from the state budget; (4) the state pays the total loss; (5) there is also personal liability of state officials in terms of state liability. Given her strong understanding of the theory and history of Vietnamese state liability, the researcher is well-placed to understand the reality and significance of this issue within the global context. This provides the basis for the following chapters.

357 _{Mark Aronson, ‘Government Liability in Negligence’ (2008) 32 (44) Melbourne University}

Law Review 44.

358 _{In Commonwealth countries such as England, Canada, Australia, it can be used like Crown} liability.

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Chapter four: A critical review of the SCL –

The necessity for its further reform

4.1. Introduction

This chapter reviews the SCL 2009 including the scope of the law, the grounds of state liability, the method used to calculate damages, the responsibility of state officials, and the process for determining compensation liability. It becomes obvious that the SCL 2009 still has significant shortcomings that need to be reformed. In particular, the scope of law is very limited and, to that extent, it is inconsistent with the Constitution. The grounds for liability are inappropriate and they unduly constrain claimants for compensation. Damages are difficult to calculate and awards are often very small. The accountability of the state officials is not sufficiently robust to enhance the quality of administration by state agencies. This chapter also assesses the effect of the SCL in the wider Vietnamese context. It concludes by specifying the features of the law which need to be revised.