10/01/2022
In the Constitution of the Socialist Republic of Việt Nam 2013, Article 63 stipulates that “Organizations and individuals that cause environmental pollution, natural resource exhaustion or biodiversity depletion shall be strictly punished and shall rectify and compensate for damages”. On the basis of the Constitution 2013, many other legal documents also stipulate the responsibility for remedy and compensation for damages caused by the acts which pollute the environment.
According to current legal provisions in Việt Nam, compensation for damages caused by violations against the Law on Environmental Protection (LEP) is in the field of compensation for non-contractual damages. Therefore, the legal basis for settling claims for compensation for damages caused by violations against the LEP is firstly implemented in accordance with the Civil Code 2015’s provisions on compensation for non-contractual damages. Specifically, in the Civil Code 2015, Article 172 stipulates: “When exercising ownership rights and/or other property-related rights, the owner or the holder must comply with the provisions of LEP; if he/she causes environmental pollution, the owner shall have to terminate the acts which cause the pollution, to take measures to remedy the consequences and to compensate for damages”. Article 602 stipulates: “Any entity polluting the environment, thereby causing damages, must compensate in accordance with the Law, including when the entity polluting the environment was not at fault”. Thus, the responsibility for compensation for environmental damages to individuals and organizations that pollute and degrade the environment has been stipulated by the Civil Code. According to these provisions, the entity that has the acts which pollute the environment while cause damages to others, must compensate for damages, including when the entity polluting the environment was not at fault.
The LEP 2014 continues to affirm the legal basis of prosecution for compensation for damages caused by acts which pollute and degrade the environment in Clause 8, Article 4: “Any organization, family household or individual, who causes environmental pollution, incidents and degradation, is responsible for remedy, compensation for damages and assumes other responsibilities in accordance with legal provisions” and provides in details the compensation for damages in the field of environmental protection. The LEP 2014 stipulates damages caused by environmental pollution and degradation (Article 163); Principles of handling responsibilities of organizations, individuals polluting the environment (Article 164); Determination of damages caused by environmental pollution, degradation (Article 165); Determination of damages caused by deterioration in environmental function and productivity (Article 166); Liability insurance for compensation for environmental damages (Article 167).
In addition to the above provisions, the responsibility for compensation for damages caused by violations against the law on environmental protection is also stipulated by a number of other relevant laws: Law on Land, Law on Minerals...
After 6 years of implementation, besides the advantages, the provisions on compensation for damages have revealed a number of obstacles and shortcomings that need to be amended, supplemented and improved. The provisions on compensation for environmental damages in the LEP 2020 in item 2 from Article 130 to 135 include the following new points compared to the LEP 2014:
1. Principle for determining responsibility for compensation for environmental damages
The principle on responsibility for compensation for environmental damages is a newly added content compared to the LEP 2014. Organizations and individuals that cause damages to the environment are responsible for compensation for all damages caused by themselves and must at the same time pay all costs of damage determination and carry out the procedures for claiming compensation for the environmental damages according to legal provisions.
Organizations and individuals have the right to prove that they do not cause damages to the environment and when the results are proven to be correct, they are not required to pay compensation for environmental damages and do not have to bear the costs related to damage determination and implementation of procedures for claiming damages.
For cases where there are 2 or more organizations or individuals causing environmental damages, the responsibility for compensation is determined based on the proportion corresponding to the proportion of damages caused to the total environmental damages; If the concerned parties or the state management agencies in charge of the environment cannot determine the proportion of responsibility, the arbitration agency or the Court shall decide according to its competence.
2. Provisions on the subject responsible for claiming compensation and organizing the collection and verification of data and evidence to determine environmental damages due to pollution or degradation
The LEP 2020 stipulates the responsibility of claiming compensation for environmental damages to state management agencies including: Commune People's Committees, District People's Committees, Provincial People's Committees and the Ministry of Natural Resources and Environment. The addition of provisions clearly defines the subject responsible for claiming compensation and organizing the collection and verification of data and evidence to determine environmental damages due to pollution and degradation to facilitate the implementation of the subsequent processes of the compensation for damages. On the other hand, assigning the responsibility of organizing the collection and verification of data and evidence to determine environmental damages due to pollution and degradation to a competent state agency is appropriate because in fact the collection of data and evidence to prove the deterioration of the function and productivity of the environment is very complicated, expensive and beyond the ability of the people.
Such provisions are not only reasonable but also protect the legitimate rights of the parties involved and save litigation costs (such as the cost of verification which is very complicated and expensive). In recent environmental cases, polluting enterprises did not seem to have to do anything and even challenged people to sue to prove it (as per the general provisions of the Civil Code), leading to the Court having to solicit the verification of a third party and the suing party to advance costs, which is very complicated, lengthy and expensive.
3. Determination of damages caused by environmental pollution and degradation
The LEP 2020 additionally stipulates the determination of environmental damages and degradation based on information on: scope and area of environmental pollution or degradation; number of environmental components reduced, types of ecosystems, species damaged; damage levels of each environmental component, ecosystem and species.
The determination of damages due to deterioration of the function and pproductivity of the environment is carried out independently or in coordination between the damage-causing party and the damaged party. At the request of each party or parties, the specialized environmental protection agency shall participate in guiding the calculation and determination of damages or witness the determination of damages.
4. Provisions on settlement of compensation for environmental damages
According to the LEP 2020, compensation for environmental damages is settled through negotiation between the parties. In case of failure to negotiate, the parties can choose to settle through the following three forms: (a) Conciliation; (b) Settlement of disputes by arbitration; (c) Settlement of disputes by Court.
New provisions on forms of settlement of compensation for environmental damages create advantages in actual settlement of disputes and claims for compensation for environmental damages between organizations and individuals.
5. Costs of compensation for environmental damages
As for the content of costs of compensation for environmental damages, the LEP 2020 stipulates more specifically and adds costs for determining damages and carrying out procedures for compensation for environmental damages compared to the provisions on this content in the LEP 2014. Along with other types of costs, including Cost of immediate and long-term damages due to the deterioration of the function and pproductivity of the environment, cost for treatment, environmental improvement, cost for minimizing, eliminating sources of damages or organizing response to environmental incidents, this cost has become one of the four groups of costs used as a basis for compensation and settlement of compensation for environmental damages.
Assoc. Prof. Dr. Pham Van Loi - Director General
MSc. Han Tran Viet
Environmental Science Institute
(Source: Vietnam Environment Administration Magazine, English Edition IV-2021)
