Compensation for damages caused by violation of consumer rights, theoretical and practical issues

- The person causing the damage is at fault.

However, when analyzing each condition, we will see the difference between the liability for compensation for damages caused by violation of consumer rights and other cases of liability for compensation for damages outside of the contract.

* First, there is actual damage:

It can be said that this is a prerequisite for the liability to compensate because there must be “damage” to “compensate”. Damage is a condition for determining civil liability and is also a necessary condition for determining the level of compensation for the party causing the damage. The purpose of compensation is to restore the state before the damage occurred, so responsibility is associated with compensating for the damage that has occurred. Therefore, damage is a condition that gives rise to the liability to compensate. So what is “damage” and how does damage affect liability?

Damage is loss of life, health, honor, dignity, reputation, property, rights and other legitimate interests of an individual; property, honor, reputation of a legal entity or other subject protected by law”. [29]

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From the above definition and based on the division of the 2005 Civil Code, compensable damages include:

- Damage caused by property infringement;

- Damages due to infringement of life;

- Damage caused by health infringement;

- Damages caused by infringement of honor, dignity and reputation.

We can also divide according to the type of damage including: material damage and damage due to mental loss. [10]

Material damages include: damage caused by property infringement, damage caused by health infringement, damage caused by life infringement, damage caused by honor, dignity, and reputation infringement.

Damages due to personal spiritual loss are understood as the health, honor, dignity, and reputation of the victim being violated or the victim's life being violated, causing the victim's closest relatives to suffer pain, sadness, emotional loss, loss or deterioration of reputation, being shunned by friends due to misunderstandings... and need to be compensated an amount of money to compensate for the loss they have suffered.

Damages caused by mental loss of legal entities and other entities that are not legal entities (collectively referred to as organizations) are understood to be due to the honor and reputation being violated, the organization being reduced or losing credibility, trust... due to being misunderstood and needing to be compensated with an amount of money to compensate for the loss that the organization has suffered.

In addition, if based on the area of compensation, we can distinguish between direct damage and indirect damage.

Although we can divide the damage in one way or another, to be compensated, the damage must be actual damage (has occurred or will certainly occur) and must be objective and real. The person who commits an illegal act will be responsible for compensating for all the damage caused by their fault. Therefore, if it is compensation for damage in a contract, the compensation level can be equal to or higher than the actual damage because in the contract, the parties can agree and stipulate penalties for violations... but compensation for damage outside the contract must comply with the provisions of the law on the principle that the damage must be compensated in full and promptly. That is, the compensation must be equal in value according to the law of goods and money of the commodity production, to ensure that no one benefits without legal basis from the compensation. On the other hand, the meaning of compensation is to restore the situation before the damage occurred, not for the purpose of punishment, ensuring fairness for the parties. Therefore, the Civil Code also stipulates that the person causing damage has

compensation can be reduced if the damage caused by negligence is too great compared to the immediate and long-term economic capacity. However, some Western countries have a different perspective. Their laws allow compensation for damages many times higher than the actual damage. Why is there such a regulation? This probably comes from many different causes, maybe due to legislative tradition, due to historical conditions of each country, but their explanation here also has reasonable points. They believe that such a regulation will encourage consumers to file more lawsuits and thus not only will their rights be guaranteed but other consumers in similar situations can also request compensation, thereby creating a ripple effect to protect the whole community and also have the effect of promoting manufacturers and businesses to produce better quality products, serving consumers better. It is also a practical way to protect consumers, however, whether it can be applied in Vietnam or not depends on many factors. If it is not applied well, it can lead to violations of legal principles and the thing to pay attention to is suitability.

Returning to the provisions of Vietnamese law, in most cases of compensation for damages outside the contract, before the time of compensation liability, the parties do not have a relationship with each other in terms of legal rights and obligations. However, in the liability for compensation for damages due to violation of consumer rights, the liability often arises from a previous contract (which can be a contract for the sale of goods, use of services, etc.). Therefore, compensation for consumers often involves a mix of responsibilities inside and outside the contract. Therefore, it is necessary to specifically determine which damages belong to the liability for compensation for damages due to violation of consumer rights. According to the author, damages due to violation of consumer rights can only be damages due to infringement of life and health.

Damages caused by health infringement are recorded in Article 609 of the Civil Code:

Accordingly, material damage when health is violated includes:

- Reasonable costs for treatment, rehabilitation, health restoration and lost or reduced functions of the injured person;

- Actual lost or reduced income of the injured person; if the actual income of the injured person is unstable and cannot be determined, the average income of the same type of worker shall be applied;

- Reasonable expenses and actual lost income of the person caring for the injured person during the treatment period; if the injured person loses the ability to work and needs regular care, the damages include reasonable expenses for caring for the injured person.

And mental damage when health is violated, the spirit is an abstract thing inside the human being, very difficult to grasp and determine. To determine mental damage, there will be no general formula because depending on each subject, depending on each condition and circumstance, we can consider whether there is mental damage or not. According to the provisions of the Civil Code, in case of health violation, the compensation for mental damage due to health violation is compensated to the person who suffered the damage. The compensation level is agreed upon by the parties, if no agreement is reached, the maximum level is not more than thirty months of the minimum wage prescribed by the State.

Previously, the 1995 Civil Code stipulated that “depending on each case”, the Court would decide to give the person who suffered damage to health the amount of compensation for mental damage. Thus, we can understand that this compensation is not automatic and it depends a lot on the will of the Judge when deciding the case. This can be flexible but in many cases it does not create fairness because there will be no “standard” for evaluation.

The 2005 Civil Code has removed the phrase "depending on each case" and replaced it with "must compensate" and Resolution No. 03/2006/NQ-HDTP dated July 8, 2006 also affirmed that "in all cases" when health is violated, compensation for mental damage will be paid. However, determining the level of mental damage must be based on the guidance in Resolution 03 as mentioned above. In addition, it is necessary to base on the impact on career, aesthetics, social communication, family and personal life... So according to the 2005 Civil Code, we can understand that compensation for mental damage is natural, but the parties can agree on the level of compensation. In case the parties cannot agree, they will base on the corresponding provisions in the Civil Code. The regulation of the ceiling level in the Civil Code will create conditions for the enforcement of judgments in practice.

In general, the provisions in the Civil Code are quite complete and reasonable. In addition, the Council of Judges of the Supreme People's Court also issued Resolution No. 03/2006/NQ-HDTP dated July 8, 2006 providing very detailed guidance on determining and calculating the above damages, so here the author will only discuss a few more issues as follows:

To ensure the principle of full and timely compensation, the costs mentioned above must be “reasonable costs”. That is, in addition to ensuring the urgent and quick factors (to minimize damage), those costs must “be actual necessary costs, appropriate to the nature and extent of the damage, and appropriate to the average price in each locality at the time of the cost” (Resolution 03). For example, if a person who has suffered damage due to economic conditions has used expensive medicine while using another less expensive medicine that is still effective in treatment, then compensation can only be accepted at that level and the additional cost will not be considered reasonable.

Article 612 of the Civil Code only stipulates the time limit for receiving compensation for damages.

damage in the case of the victim's death but has not mentioned the time limit for receiving compensation for damages when health is reduced, that is, the ability to work is reduced. There are also two cases of reduced ability to work: one is that although it is reduced, this ability can be gradually restored after a period of treatment (for example, due to injury); the other is that part of the ability to work is permanently lost and cannot be restored (for example, a broken limb). Resolution 03 also does not provide guidance on this issue. According to the author, if the law does not have specific regulations, the parties have the right to freely agree. This amount may be calculated and compensated once, after which the obligation to compensate will end. It is also possible that compensation will end when health is restored.

Damages caused by infringement of life are recorded in Article 610 of the Civil Code:

Material damage when life is violated includes:

- Reasonable costs for treatment, compensation and care of the injured person before death;

- Reasonable costs for burial;

- Maintenance for those whom the injured person is obligated to support.

And the mental damage when life is violated is in the case of life being violated, the relatives in the first order of inheritance of the injured person, if there are no such people, the person who the injured person has directly raised, the person who has directly raised the injured person shall receive compensation for mental damage. The compensation level is also agreed upon by the parties, if no agreement is reached, the maximum level shall not exceed sixty months of minimum salary as prescribed by the State. As in the case of damage due to health being violated, in this case compensation for mental damage is also natural. However, it is necessary to

Based on the guidance at Point b, sub-section 1.1, section 1, Part 1, Resolution No. 03/2006/NQ-HDTP dated July 8, 2006 to determine the level of mental damage to relatives of the victim. Determining the level of mental damage must be based on the status of the victim in the family, the relationship in life between the victim and the relatives of the victim...

Human life and health are valuable assets, they contain properties that other types of "assets" do not have. Therefore, once human life and health have been violated, "restoring the original state" is very difficult, if not impossible. Although they are material, life and health cannot be converted into a specific "quantity" for valuation, so compensation is only remedial in nature, aiming to partially compensate for the losses and damages that the victims and their families have to bear. Consumers are the ones who have to suffer the direct consequences of the provision of poor quality goods and services. These products have had a significant impact on the health and lives of consumers. However, consumers who want to be compensated must prove that there is damage and have the costs to remedy it. It is necessary to base the claim on valid invoices and documents.

* Second, causing damage is an illegal act:

“Illegal acts are acts performed contrary to the provisions of law such as not doing things required by law, doing things prohibited by law, operating beyond the scope permitted by law…”[8].

Accordingly, illegal behavior can also be understood as specific human behaviors expressed through actions or inactions that are contrary to the provisions of law.

According to the general provisions of the law, every individual and organization has the right to protection of life, health, property, honor, reputation, and dignity. Therefore, those who violate these absolute rights are considered to have committed illegal acts, regardless of whether they are at fault intentionally or unintentionally, or even in individual cases without fault. “In the Socialist Republic of Vietnam, human rights in the political, civil, economic, cultural, and social fields are respected, expressed in civil rights, and are stipulated in the Constitution and laws.” [14. Article 50]. “Citizens have the right to physical inviolability, and are protected by law in terms of life, health, honor, and dignity…” [14. Article 71]. Or “All civil rights of individuals, legal entities, and other subjects are respected and protected by law.” [15. Article 9]. “The establishment and exercise of civil rights and obligations must not infringe upon the interests of the State, public interests, or the legitimate rights and interests of others” [15. Article 10]. “Anyone who… infringes… and causes damage must compensate” [15. Article 604].

When the law has strict regulations as above, any subject that violates it will be considered to have committed illegal acts and must bear adverse consequences. Because the law recognizes and allows subjects to have the right to choose appropriate behavior, but if they go against it, it means they are breaking the law.

In terms of consumer protection, illegal behavior here is a violation of consumer rights. It is a violation of basic consumer rights recognized by law and respected by society. Taking a closer look, the violation of consumer rights comes from the production and trading of goods that do not ensure quality, causing damage to consumers. So what kind of goods are not guaranteed quality?

Realizing the importance of product quality has an impact

Compensation for damages caused by violation of consumer rights, theoretical and practical issues - 5

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