09/01/2018
Việt Nam is developing a multi component market economy toward industrialization and modernization. In this process, economic activities such as investment, industrial zone, export processing zone and industrial cluster development have been boosted. Enterprises under different economic sectors have been established. However, associated with economic development is environmental pollution and degradation. In practice, some enterprises only focus on economic development without proper attention to environmental protection and waste treatment. As a result, pollution is getting worse, impacting on people’s heath and livelihood.
To prevent this situation, the State has issued regulations for compensation for environmental pollution and degradation. However, these regulations provide only general principles and hence cannot be easily applied. The practice of dealing with suing cases on environmental compensation shows the following shortcomings and obstacles:
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| It is difficult to request compensation for damage caused by river pollution because it involves multiple subjects and widespread impact |
COMPENSATION FOR LIFE, HEALTH AND PROPERTY DAMAGE CAUSED BY ENVIRONMENTAL VIOLATIONS
First, according to current regulations, bases for responsibilities for compensating for live, health and property damage include four factors: damage, violations causing damage, people causing damage intentionally or unintentionally, and a cause-effect relationship between damage and the violations. However, legally it is very difficult to prove the cause-effect relationship.
Second, to protect legal rights and benefits of the people, according to regulations, the people have to collect evidence of violations of polluters and determine the level of damage by themselves to put a case. However, in practice, it is difficult for people to collect evidence due to a lack of time, finance, equipment and knowledge. This affects their rights to sue.
Third, it is very difficult to determine and quantify compensation for live and property, in particular compensation for damaged spirit and lives. According to Judging Council of People’s Supreme Court’s Resolution 03/2006/NQ-HDTP dated 8/7/2006 providing the implementation of Civil Code on non-contract compensation for damage, clause b, point 1.1, section 1, part 1 provides guidance on determining spiritual damage. This regulation promulgates that the maximum for health damage is not exceeding minimum 30 month wages and compensation for spiritual damage of their family members is not exceeding minimum 60 month wages. Determining damage compensation needs to refer to consequences of violations to the affected people. That means the affected people not only suffer from health damage and wounds (physical damage) but also incur spiritual damage (in terms of social relationships and occupations). Spiritual damage also depends on economic status, age, occupational position, and appearance. This is complex spiritual damage.
Fourth, damage caused by environmental violation is widespread and affect a large number of people. However, according to current regulations, people are not allowed to sue collectively to protect their legal rights and benefits.
Fifth, life, health and property damage caused by environmental violations is diverse and complex. Therefore, it is difficult to determine damage values. In addition, regulations on determining damage and compensations in the Civil Code are yet concrete and too general. As a result, judges interpret the regulations differently, leading to inconsistent decisions. Therefore rights and benefits of the affected people are not protected. In many cases, compensations are improper.
Sixth, environmental courts are yet available. Judges’ environmental knowledge is at different levels, leading to difficulties in handling the cases.
COMPENSATIONS FOR DAMAGE TO THE NATURAL ENVIRONMENT
First, regulations on compensation for the natural environment (degraded functions and benefits of the environment) are scattered with different legal entities, causing difficulties for organizations and individuals in grasping and complying. Many of the regulations are yet concrete and need guidance for implementation.
Second, environmental pollution, degradation and damage are caused by many environmental violators and the scope of pollution and damage is widespread (rivers, river basins, lakes, ponds, seas, field…) Therefore, it is very difficult to identify direct subjects causing damage. Hence, it is complex to prove the subject directly causing damage who should be responsible for compensation.
Third, environmental violations are diverse and their consequences are at different levels. Therefore, it is difficult to determine damage levels and to collect evidence while it requires highly qualified staff and sophisticated equipment to collect and analyze samples to ensure typical requirements of the environmental sector. This is not yet guided by regulations.
Fourth, according to current regulations, state authorities can hire businesses to collect data and evidence for damage compensation. However, criteria for selecting the businesses have not been regulated. This requires concrete guidance. It is regulated that provincial and district’s people’s committees are responsible for collecting and appraising data and evidence. However, it is unclear which authorities under the committees are responsible for undertaking this task.
Fifth, current regulations have not specified cost norms for treating a unit of polluted water or soil, restoring a unit of degraded ecosystem, replacing a dead endangered species individual and saving and caring for injured endangered species individual.
Sixth, in case businesses do not agree with the damage compensation requested by competent authorities, the businesses have to prove that they do not cause pollution or the level of caused pollution. Therefore, it is necessary to have regulations on procedures to prove that business do not cause pollution. In addition, Viet Nam has not had data on the background environment; hence it is difficult to determine damage by comparing against the initial environmental state.
Assoc. Prof. Dr. Phạm Văn Lợi
Environmental Science Institute
