RESOLUTION

ON GUIDELINES FOR APPLICATION OF SOME PROVISIONS OF THE CIVIL CODE ON TORT LIABILITY

THE COUNCIL OF JUDGES OF SUPREME PEOPLE'S COURT

Pursuant to the Law on Organization of People's Courts dated November 24, 2014;

To properly and consistently apply a number of provisions in Chapter XX on tort liability of the Civil Code dated November 24, 2015;

After consulting with the Chief Procurator of the Supreme People's Procuracy and the Minister of Justice,

HEREBY RESOLVES:

Article 1. Scope

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Article 2. Elements to be established to prove the tort liability specified in Article 584 of the Civil Code

1. The tort liability in the case specified in Clause 1, Article 584 of the Civil Code exists when the following elements are fully established:

a) An tortious act that caused harm or damage to the life, health, property, honor, dignity, property, rights and legitimate interests of others;

b) The damage exists, which is physical damage or mental damage;

Physical damage is the identifiable actual physical loss of the aggrieved person, including property damage that is unrecoverable; reasonable costs to prevent, limit or remedy the damage; actual income that is lost or reduced because property, health, life, honor, dignity, reputation, rights and other legitimate interests are infringed.

Mental damage is a mental loss caused by infringing upon the life, health, honor, dignity, reputation, rights and other personal interests of the aggrieved person or his or her relatives. and need to be compensated for that loss.

c) There is a causal link between the resulting damage and the tortious act. The resulting damage must be the inevitable result of the tortious act and vice versa, the tortious act is the causation of the damage.

2. If property causes damage, the owner or possessor of the property must take on the tort liability, except for the case guided in Clause 3 of this Article.

a) The property owner must take on liability for damage caused by the property, unless the person possessing such property bears tort liability under the guidance at Point b, Clause 2 of this Article.

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For example: A sold a house to B, the house sale contract was notarized, B has paid 80% of the purchase price to A but did not receive the house when the house caught on fire, spreading to house C causing damage. According to Clause 1, Article 12 of the Law on Housing 2014, the time of transfer of ownership is the time when the buyer has paid in full and received the house, unless otherwise agreed. In this case, B has not paid the full amount and has not received the house, so A has not transferred the ownership of the house to B. Therefore, A is still the legal owner of the house and bear tort liability to C.

b) The possessor who is not the owner must compensate for damage if he is holding, directly or indirectly controlling the property as the holder of the right to the property at the time of causing the damage.

For example: A is the owner of a car who has handed over that car to B. B was driving the car in traffic and caused an accident and caused damage, it is necessary to distinguish two cases:

- If A hired B to drive a car and pays B's wages, the use of the car is decided by A. In this case, A is the person who possesses and controls the car. Therefore, A is liable for damages, unless otherwise agreed.

- If A delivered a car to B through a legal property lease contract, the use of the car is decided by B. In this case, B is the person who possesses and controls the car. Therefore, B is liable for damages, unless otherwise agreed.

3. The tortfeasor, property owner, or property possessor does not bear tort liability in case the damage is caused by force majeure events or entirely at fault of the aggrieved person, unless otherwise agreed or otherwise provided by law.

a) Force majeure event is an event that occurs objectively, which cannot be foreseen and cannot be recoverable although all necessary and reasonable measures have been taken.

Example 1: A's house is under construction, is in normal use and shows no signs of damage. A sudden, unforeseeable tornado swept A's roof onto passerby causing damage. This case is a force majeure event, so A does not bear tort liability.

Example 2: A storm is forecasted, A has taken precautionary measures according to the guidance of the competent authority in local area. However, the storm was so strong that it blew off the roof of A's house and caused damage to pedestrians. This case is a force majeure event, so A does not bear tort liability.

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For example: A was driving a car (which he owns) in accordance with the Road Traffic Law, C crashed into A's car on the road to commit suicide. In this case, A does not bear tort liability for damage caused by C's fault.

Article 3. Principles of compensation for damage specified in Article 585 of the Civil Code

1. Regarding Clause 1, Article 585 of the Civil Code

a) “Actual damage” means damage that has occurred under the guidance at Point b, Clause 1, Article 2 of this Resolution, converted into money at the time of compensation settlement. Damage arising after the time of first settlement of compensation shall be determined at the time of subsequent settlement of compensation at the request of the aggrieved person.

For example: A caused injury to B that B has had to treat for a long time. At the time the Court settles the compensation, the actual total damage is X dong, including: treatment costs, lost or reduced income; costs for caregivers, metal loss. After that, B still has had to continue to receive treatments, the expenses incurred after the time of the Court's settlement will be settled in another case at the request of the aggrieved person.

b) “Damage to be fully compensated” means all actual damage that must be compensated.

c) “Damage to be compensated in time” means damage that must be compensated as soon as possible in order to prevent, limit and remedy damage.

During the settlement of the case, the Court may apply one or several temporary urgent measures as prescribed by the civil procedure law to settle urgent claims of the aggrieved person (such as forcing the performance of partial obligation to compensate for loss of life or health in advance; or forcing the performance of partial support obligation in advance, etc.).

d) In order to ensure complete and timely compensation for damage, the settlement of compensation issues in criminal or administrative cases must be carried out together with the settlement of criminal or administrative cases.

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dd) The claimant for damage must clearly state each item of damage actually occurred, claimed compensation amount and documents supporting that his/her claim is grounded.

In case the damage claimant is unable to collect documents by himself/herself, he/she has the right to request the court to collect documents in accordance with the Civil Procedure Code.

2. Regarding Clause 2, Article 585 of the Civil Code

The extent of damage that is too great for the financial situation of the person responsible for compensation is a case where there are grounds to prove that if the Court orders compensation for the entire damage, the defendant’s financial situation is not enough to enforce the judgment.

For example: A person unintentionally sets fire to another's house, causing damage of 1,000,000,000 VND. The tortfeasor has total assets of 100,000,000 VND, the average monthly income is 2,000,000 VND. This extent of damage is too great compared to the financial situation of the tortfeasor.

3. Regarding Clause 3, Article 585 of the Civil Code

“The claimed compensation amount no longer consistent with reality” means that due to a change in the socio-economic situation; price fluctuations; change in injury status, working ability of the aggrieved person; a change in the financial situation of the tortfeasor, then the claimed compensation amount is no longer consistent with such change.

The aggrieved person or the tortfeasor requesting a change in the claimed compensation amount must file a written request for the change in the claimed compensation amount. Attached to the request are documents as a basis for requesting a change in the claimed compensation amount.

4. Regarding Clause 4, Article 585 of the Civil Code

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For example: A and B were both driving a car on road, then they both hit together, resulting in A’s loss of 100,000,000 VND. The competent authority determined that A and B are jointly at fault with a 50% degree of fault each. In this case, B must compensate A 50,000,000 VND (50% of the damage).

5. Regarding Clause 5, Article 585 of the Civil Code

"The aggrieved party with infringed rights and interests shall not be compensated if the damage occurs due to his/her failure to apply necessary and reasonable measures to prevent or limit damage to himself/herself" is the case where the aggrieved party would know, foresee that if no precautionary measures has been taken, the damage will occur and she is able to take these measures to prevent and limit the damage from occurring but she/he has let the damage happen, then the aggrieved party shall not be compensated for the damage.

For example: A's house was caught on fire, B parked his car near A's house, B knew that if he didn’t move it, the fire would spread to burn B's car, and B was able to move it but B did not do that. In this case, B is not entitled to compensation.

Article 4. Determination of the age of the tortfeasor according to Article 586 of the Civil Code

The age of the tortfeasor is identified at the time of causing the damage. In case it is not possible to determine the exact age of the tortfeasor, their date of birth shall be determined as follows:

1. In case the month can be determined but the date cannot be determined, the last day of that month shall be used as the date of birth;

2. In case the quarter can be determined but the day and month cannot be determined, the last day of the last month in that quarter shall be used as the date of birth;

3. In case the half of the year can be determined but the day and month cannot be determined, the last day of the last month in that half year shall be used as the date of birth;

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5. If the year of birth cannot be determined, an assessment must be carried out to determine the age.

In case the age assessment results only determine the age range of the tortfeasor, the Court shall use the lowest age within the determined age range to determine their age.

For example: If the expertise conclusion states that M's age is between 13 years and 6 months to 14 years and 2 months, the age of M is 13 years and 6 months.

Article 5. The statute of limitations for filing a tort claim specified in Article 588 of the Civil Code

1. If the tortious act is committed before or after January 1, 2017 (the effective date of the Civil Code) and the defendant files a tort claim from January 1, 2017, the statute of limitations for filing a tort claim is 03 years from the date on which the victim knows or should know that his/her legitimate rights and interests have been infringed.

2. The time which the victim knows that his/her legitimate rights and interests have been infringed is when he/she realizes or can confirm that his/her legitimate rights and interests have been infringed.

For example: On July 2, 2022, A discovered that a mass fish death happened in his pond. A suspected that the cause was wastewater from house B, so A requested the environmental assessment agency to conduct an assessment of the cause. On August 15, 2022, A received the inspection results about the main cause of damage being the wastewater from house B. In this case, the time when A has known his rights and interests have been infringed is August 15, 2022.

3. The condition that a victim should know that his/her lawful rights and interests have been infringed must be under normal conditions and circumstances, if damage occurs, that person should know his/her lawful rights and interests have been infringed or is required by law that he/she should know.

Example 1: On June 20, 2022, A caused injury to B and on the same day B had to be hospitalized for treatment of injury. In this case, the time B should know that his rights and interests have been violated was June 20, 2022.

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Article 6. Determination of damages for damaged property specified in Article 589 of the Civil Code

1. The damages for lost, destroyed or damaged property specified in Clause 1, Article 589 of the Civil Code shall be based on the agreement of the parties; in case the agreement fails, the damages shall be determined as follows:

a) In case the property is an object, the damages for the lost or destroyed property shall be determined based on the market price of the property of the same type or the property with the same features, technical standards, uses, and the level of wear and tear of the lost or destroyed property at the time of compensation settlement.

If the property is money, the damages shall be determined as the lost or damaged amount of money.

As for valuable papers that are lost or damaged but cannot be restored, the damages shall be determined as the value of the lost or destroyed valuable papers at the time of compensation settlement. Where valuable papers are lost or damaged but can be restored, the damages shall be determined as expenses necessary to restore those papers.

b) As for damaged property, the damages shall be the cost to repair and restore the property to its pre-damaged condition at the market price at the time of settlement of compensation to determine the loss; if the damaged property cannot be repaired or restored, the damages shall be determined according to the guidance at Point a, Clause 1 of this Article.

2. Benefits associated with the use and exploitation of lost or reduced property specified in Clause 2, Article 589 of the Civil Code are yields and profits that the aggrieved person has or is expected to have obtained if the property is not lost or destroyed.

Yields and profits are calculated according to the actual price being earned, if not yet earned, at the market price of the same type or the 1-month average rental price of the property of the same type or property with the same technical standards, features, uses and quality at the time the first-instance Court determines the damages; as for property on the market that are not available for rent, their yields and profits are determined on the basis of the average income of three consecutive months brought by the damaged property under normal conditions before the time when the loss occurred.

3. Reasonable expenses to prevent, limit and remedy the loss specified in Clause 3, Article 589 of the Civil Code are actual and necessary expenses at the time of spending under normal conditions for the imposition of necessary measures to prevent further loss; repair and restore the original condition of the infringed property.

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Article 7. The damages for harm to health prescribed in Article 590 of the Civil Code

1. Reasonable costs for treating, nursing and rehabilitating health, and functional losses and impairment of the aggrieved person. including;

a) Expenses for medical examination and treatment in accordance with the law on medical examination and treatment for the aggrieved person; hiring vehicles to take the aggrieved person to the health facility and back to their place of residence;

b) The cost of improving health of the aggrieved person is determined as 01 day of regional minimum wage at the health facility for 01 day of medical examination and treatment according to the number of days in the medical record;

c) The cost of health recovery and health rehabilitation includes expenses for the recovery, support or replacement of a part of lost or reduced functions of the aggrieved person’s body.

2. The actual lost or reduced income of the aggrieved person is determined as follows:

a) In case the aggrieved person has a stable income from salary or wages, it shall be determined according to the salary or wage amount of the aggrieved person during the period of lost or reduced salary or wage;

b) In case the aggrieved person has an unstable income from salary or wage, the salary or wage is determined based on the average salary or wage amount of the 3 consecutive months preceding the time of loss. In case it is impossible to determine 03 consecutive months' salary before the time of loss, it shall be based on the average income of workers of the same type in the local area during the period when the actual income is lost or reduced. If it is impossible to determine the average income of workers of the same type in the local area, the actual lost or reduced income that is compensated is 01 day of regional minimum wage in the place where the aggrieved person resides for 01 day of loss.

Daily regional minimum wage equals 01 month's regional minimum wage as prescribed by the State divided by 26 days.

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a) Reasonable expenses for caregiver(s) of the aggrieved person during the treatment period, including: vehicle fares, and rented room rents according to the average prices in the place where the aggrieved person has been treated (if any);

b) The actual lost income of the caregiver(s) of the aggrieved person during the treatment period is determined according to the guidance in Clause 2 of this Article;

c) In case the aggrieved person loses his/her capacity to work and must be taken care of by someone regularly, the reasonable expense for taking care of the aggrieved person is determined to be 01 day of regional minimum wage in the place where the aggrieved person resides for 01 day to take care of the aggrieved person.

Article 8. The damages for harm to life specified in Clause 1, Article 591 of the Civil Code

The damages for harm to life as prescribed at Points a, b and c, Clause 1, Article 591 of the Civil Code is determined as follows:

1. The damages for harm to health as prescribed in Article 590 of the Civil Code, guided in Article 7 of this Resolution, shall be calculated from the time the aggrieved person’s health is infringed until the time the aggrieved person is dead.

2. Reasonable expenses for burial, including: cost of coffins; incineration or burial cost; cost of necessary items for laying the deceased in the coffin, mourning headbands, incenses, candles, flowers, hearse rents and other expenses for burial or incineration of the victim according to local customs and practices. Do not accept a tort claim for costs of sacrifices, worship, meals, grave construction, and relocating the grave.

3. Alimony for those for whom the aggrieved person is obliged to support or raise before death is determined as follows:

a) The level of support is based on the income, actual ability of the person with the support obligation and the essential needs of the supported person, but must not be lower than 01 month's regional minimum wage in the place where the supported person resides for each month;

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c) The entities entitled to compensation for alimony are those for whom the aggrieved person is obliged to support in accordance with the law on marriage and family.

Article 9. The damages for harm to honor, dignity or reputation prescribed in Article 592 of the Civil Code

The damages for harm to honor, dignity or reputation prescribed in Article 592 of the Civil Code are determined as follows:

1. Reasonable costs to limit and remedy the damage, including: Necessary expenses for the repossession and deletion of articles, publications, and data with contents that offend the honor, dignity and reputation of the aggrieved person; expenses for the collection of documents and evidence proving that honor, dignity and reputation are infringed; vehicle fares, rented room rents (if any) at the average price in the place where the aggrieved person pays to request the competent authorities to verify the facts and correct them on the mass media; expenses for organizing public apology and correction at the place of residence or workplace of the aggrieved person and other actual and necessary expenses to limit and remedy the damage (if any).

2. The actual lost or reduced income is determined as follows:

a) Before the honor, dignity and reputation are infringed, the aggrieved person has actual income, but due to the harm to the honor, dignity and reputation, the aggrieved person must perform the following tasks in order to limit or remedy the damage, so their actual income is lost or reduced, they will be compensated for that lost or reduced actual income;

b) The determination of the actual lost or reduced income of the aggrieved person shall comply with the guidance in Clause 2, Article 7 of this Resolution.

Article 10. Damage caused by illegal acts of law enforcers specified in Article 598 of the Civil Code

If the damage caused by illegal acts of law enforcers falls within the scope of the State's compensation liability, the State shall have to pay compensations according to the Law on State Compensation Liability. In case the aggrieved person files a tort claim, the Court shall consider accepting and settling it according to the Law on Compensation Liability of the State.

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1. “While under direct management of the school” specified in Clause 1, Article 599 of the Civil Code, is within the time and space that the school has picked up and is responsible for managing, taking care of, and teaching people who are under fifteen years old.

2. “While under direct management of the hospital or other superior legal entities” specified in Clause 2, Article 599 of the Civil Code is within the time and space that the hospital, other legal entities have received and have responsibility for the management and treatment of the legally incapacitated person.

Article 12. Compensation for the damage caused by sources of extreme danger specified in Article 601 of the Civil Code

1. The source of extreme danger is determined in Article 601 of the Civil Code and relevant legal documents.

Example 1: Road motor vehicles, including cars; tractors; trailers or semi-trailers towed by cars or trucks; two-wheeled motorcycles; three-wheeled motorcycles; motorcycles (including electric scooters) and similar vehicles as prescribed in Clause 18, Article 3 of the Law on Road Traffic 2008 are sources of extreme danger.

Example 2: Weapons prescribed by the Law on Management and Use of Weapons, Explosives and Combat Gear in 2017, amended in 2019 are sources of extreme danger.

2. A person assigned by the owner of the source of extreme danger to possess and use the source of extreme danger in accordance with law must compensate for the damage caused by the source of extreme danger, except for the case the owner of the source of extreme danger and that person otherwise agreed not contrary to law, social ethics or are not intended to evade compensation.

For example: the following agreements are not against the law, social ethics or are not intended to evade compensation:

- Agreement to be held jointly and severally liable for the damages;

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3. In case the owner of a source of extreme danger assigns another person to possess or use a source of extreme danger in contravention of law and causes damage, the owner must compensate for the loss.

For example: If the owner knows that he or she does not have a driver's license for a car, but still assigns the right to possess and use it to the mentioned person, then the owner must compensate for the loss caused by that person.

4. Owners, possessors and users of sources of extreme danger must compensate for the damage caused by sources of extreme danger even without fault, except for the following cases:

a) The damage occurred was entirely due to intentional fault of the aggrieved person;

For example: Knowing that an area having a sign of dangerous high voltage source of electricity, A still steals things and gets electrocuted to death is a case entirely due to the intentional fault of the person who suffers the loss.

b) Damage occurs in case of force majeure or emergency situation, unless otherwise provided for by law.

An urgent situation is a situation of a person who wants to avoid a real danger that directly threatens his or her own or other's public interests, legitimate rights and interests, or that of others, but has no other choice but to cause less damage than the loss to be prevented.

Compensation liability in urgent situations shall comply with Article 595 of the Civil Code.

For example: A was driving a car in accordance with the Road Traffic Law, B was riding a motorbike in the opposite direction from A and encroached on A's lane. In order to avoid causing an accident for B, A had no choice but hit a motorcycle owned by C which is parked on the roadside causing damage to C. This is an emergency situation, A does not have to compensate C but B has to compensate C for damage because B has caused an urgent situation under Clause 2, Article 595 of the Civil Code.

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a) If the owner or the person assigned by the owner to possess and use lawfully is not at fault in allowing the source of extreme danger to be illegally possessed or used, the illegal possessor or user must compensate for all damage.

b) If the owner or the person assigned by the owner to possess and use lawfully is at fault in allowing the source of extreme danger to be illegally possessed or used, the owner or the person assigned by the owner lawful possession and use and the unlawful possessor and user must jointly compensate for damage.

Article 13. Entry into force

1. This Resolution is approved by the Council of Judges of the Supreme People's Court on September 6, 2022 and enters into force as of January 1, 2023.

This Resolution replaces Resolution No. 03/2006/NQ-HDTP dated July 8, 2006 of the Council of Judges of the Supreme People's Court on guidelines for the application of a number of provisions of the Civil Code 2005 on tort claims.

2. As for tort claims filed before January 1, 2017 (the effective date of the Civil Code), the provisions of the Civil Code 2005 and other documents shall apply of the Civil Code 2005 and Resolution No. 03/2006/NQ-HDTP dated July 8, 2006 of the Council of Judges of the Supreme People's Court for settlement, except for the guidance on the statute of limitations as specified in Article 5 of this Resolution.

3. As for court judgments or decisions that have taken legal effect before the effective date of this Resolution, the guidance in this Resolution shall not apply to appeals under cassation or reopening procedures, except where the appeal against the judgment or decision has other grounds.

4. Difficulties that arise during the implementation of this document should be reported to the Supreme People’s Court (via the Department of Legal and Science) for guidance.

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ON BEHALF OF THE COUNCIL OF JUDGES
THE CHIEF JUSTICE




Nguyen Hoa Binh

Nghị quyết 02/2022/NQ-HĐTP hướng dẫn áp dụng quy định của Bộ luật Dân sự về trách nhiệm bồi thường thiệt hại ngoài hợp đồng do Hội đồng Thẩm phán Tòa án nhân dân tối cao ban hành