Directions and Solutions for Perfecting the Law to Improve the Effectiveness of Law Enforcement on Compensation for Damages Caused by Environmental Pollution

- Damage to human health:

- Damages caused by the degradation of the natural ecological environment include: damage caused by the degradation and destruction of resources; damage caused by impacts on marine and coastal ecosystems, nature reserves, impacts on the development, reproduction and habitat of aquatic species, etc.

- Damage in material costs for oil collection and treatment; costs for cleaning and restoring the polluted environment (total amount of oil collected as of April 12, 2007 was 2,065 tons, of which 1,905 tons were treated).

- Damage caused by damage or destruction of State and people's assets; benefits associated with the use and exploitation of assets (beaches that cannot be used due to oil pollution, destroyed aquatic resources, etc.).

Total estimated damage as of April 12, 2007 is approximately more than 3 billion VND (not including economic, health and environmental damage that has not been statistically recorded).

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However, due to the impact of diplomatic relations between Vietnam and China, our country has not used measures to request compensation for damages caused by polluting the marine environment.

(b) The case of Vedan Limited Company causing environmental pollution on Thi Vai River, Dong Nai

In September 2008, Vedan Vietnam Limited Company (abbreviated as Vedan Company) was caught red-handed violating environmental protection laws by discharging untreated wastewater into the Thi Vai River with a flow rate of 44,800m3 per month. Toxic substances were discharged directly into the Thi Vai River, which flows through Ho Chi Minh City, Dong Nai, and Ba Ria - Vung Tau, causing serious environmental impacts and causing damage to thousands of people living on the river's water source. Vedan Company discharged wastewater with pollution parameters that exceeded the permitted standards many times over, and discharged waste with odors.

foul-smelling, untreated waste with a volume many times higher than the permitted standard into the environment. This company has been administratively sanctioned for discharging untreated waste into the environment [2].

- Vedan's act of discharging untreated waste that did not meet environmental standards was caught and proven, and Vedan was administratively punished for this act. However, Vedan Company is not the only one discharging waste along Thi Vai River, so it can be determined that Ve Dan is the main subject but not the only subject polluting the Thi Vai River environment.

- The damages of organizations and individuals in this case can be determined. Based on the provisions of the Law on Environmental Protection (Articles 4, 93, 128...),

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damage and grounds for liability to compensate for damages, organizations and individuals using polluted water sources of Thi Vai River and suffering damage to health, property, legal interests... have the right to request Vedan Company to compensate.

However, the Court refused to accept the case on the grounds that the injured party did not have evidence to prove the damage as well as the causal relationship between his damage and Vedan's illegal acts. With the help of organizations and agencies (Association of Lawyers, Association of Farmers, etc.), the injured people in Ho Chi Minh City and Ba Ria - Vung Tau prepared legal documents for Vedan to go to court, along with continuing to negotiate compensation claims according to the level of damage determined by the research agencies.

- About the subject responsible for compensation

Although it acknowledged that its environmental pollution caused damage to people, it argued that Vedan was not the only one causing pollution.

Not only does it pollute the Dong Nai River, but there are also other enterprises that discharge wastewater causing environmental pollution (according to the Report dated May 18, 2006 of the Department of Environmental Protection, through inspection, 77 enterprises out of a total of 13 industrial parks and 258 enterprises discharged wastewater into the Thi Vai River with a total wastewater volume of 50,351 m3 / day), therefore, Vedan Company believes that compensation or support for damages to people is a common obligation of Vedan and other enterprises that discharge dirty wastewater into the Thi Vai River.

Therefore, Vedan only agrees to support the damage to the people based on the responsibility caused by itself.

On July 8, 2009, the Ministry of Natural Resources and Environment established a scientific council to survey and evaluate the environmental pollution agents of Thi Vai River, determine the rate of waste sources, and conduct statistical assessments of damage as a basis for requesting Vedan Company to support or compensate the people for damages.

Up to now, after farmers in Ba Ria - Vung Tau and Ho Chi Minh City decided to sue Vedan Company in court to request compensation and were supported by competent state agencies as well as by the majority of people through boycotting Vedan products, Vedan Company agreed to compensate for damages according to specific figures given by farmers in the provinces based on the damage assessment of the Institute of Environmental Science (Ho Chi Minh City is more than 45 billion VND, Ba Ria - Vung Tau province is more than 53 billion VND and Dong Nai province is nearly 120 billion VND).

However, similar to other environmental pollution cases, it can be seen that the role of state agencies and social organizations in the negotiation and settlement of the case is very important. In the Vedan case, compensation for damage to property, rights and legitimate interests of organizations and individuals caused by environmental pollution has only been resolved. Compensation for damage to the natural environment, which is the decline in function and usefulness of the environment, has not been resolved because there is no representative.

representative to exercise the right to claim compensation for this damage. The claim for compensation is based on the damage assessment of the Institute of Environmental Science and although Vedan has accepted the compensation level, it does not have to pay the cost of determining the damage. In addition, the issue of joint liability for compensation of other organizations and individuals who also discharged dirty water into the Thi Vai River has not been considered.

While the case of VeDan company causing environmental pollution has not been resolved, Tung Kuang Joint Stock Company located in Hai Duong province was discovered to have discharged untreated wastewater causing environmental pollution.

According to information on Saigon Economic Times Online on April 14, 2010 [http://www.thesaigontimes.vn/Home/thoisu/sukien/18676/], the Ministry of Public Security's Environmental Police caught Tung Kuang Joint Stock Company (a 100% Taiwanese-owned company, located in Cam Giang district, Hai Duong) discharging wastewater into the Gie River through underground discharge pipes with a discharge flow of about 250 m3 / day; wastewater

Tung Kuang's wastewater was determined to be untreated and contain toxic substances, 10 times higher than the permitted standards. Tung Kuang's act of discharging untreated wastewater violated the Law on Environmental Protection and the Law on Water Resources. The Environmental Police Department assessed the incident as "as serious as the Vedan discharge into the Thi Vai River (Dong Nai)". This is not the first time Tung Kuang has been handled in the environmental field. Tung Kuang has not strictly implemented environmental regulations and has been warned and fined many times. In 2007, this unit was fined more than 100 million VND by the Inspectorate of the Ministry of Natural Resources and Environment for dumping untreated waste into the environment. The Inspectorate of the Ministry required the company to stop this action by March 2009 at the latest. The most recent time was in early 2009. In addition, for two consecutive years, this company has been on the "black list" of facilities causing environmental pollution in Hai Duong province.

With systematic violations, especially the act of discharging untreated waste, on April 21, 2010, Hai Duong province decided to revoke the waste discharge license and temporarily suspend production that resulted in the discharge of wastewater causing environmental pollution of Tung Kuang Company. In addition, the Provincial People's Committee also revoked decisions related to environmental impact assessment and wastewater discharge license of Tung Kuang.

On April 26, 2010, the People's Committee of Hai Duong province coordinated with the Inspectorate of the General Department of Environment and relevant agencies to hold a meeting with representatives of Tung Kuang Company regarding the illegal discharge of waste, causing serious pollution to the surrounding areas. At this meeting, the parties reached an agreement on how to handle this enterprise. Accordingly, Tung Kuang will be temporarily suspended from all activities that generate wastewater discharge until the consequences are remedied and a safe treatment method is found.

On May 26, Tung Kuang Company voluntarily dismantled the entire system discharging untreated wastewater into the environment. Workers of this company also poured concrete into the mouth of the pipe discharging untreated wastewater.

On July 11, 2010, speaking with Saigon Economic Times Online, Vice Chairman of the People's Committee of Hai Duong Province Nguyen Trong Thua said that the Investigation Police Agency of Hai Duong Province Police is preparing to initiate an investigation into the case of Tung Kuang Company discharging wastewater causing environmental pollution.

3.2. DIRECTIONS AND SOLUTIONS TO IMPROVE THE LAW TO IMPROVE THE EFFECTIVENESS OF LAW ENFORCEMENT ON COMPENSATION FOR DAMAGE CAUSED BY ENVIRONMENTAL POLLUTION

3.2.1. The need to continue researching and perfecting Vietnam's legal regulations on compensation for damage caused by environmental pollution

Nowadays, social awareness of the consequences of environmental pollution is increasingly enhanced, requiring the law to have stronger sanctions.

for acts of environmental pollution. A series of serious environmental pollution incidents that have occurred in Vietnam in recent times (such as the violations of waste discharge by Vedan in 2008, Miwon in 2009, Tung Kuang in 2010 and recently Vinamit) show that the environmental protection awareness of individuals, organizations, and even state agencies is still not good, and that the economic interests of the organization are still placed above the common interests of the community. The reason for this situation is also because the law still has general and non-specific provisions on the issue of compensation for damage caused by environmental pollution in general, on the responsibilities of organizations, individuals or other entities that cause environmental pollution in particular, and the dissemination of laws on the rights and obligations of citizens, and the responsibilities of state agencies has not been implemented well, and the law has not been strictly enforced.

The damages that have not been compensated or have not been compensated due to the lack of legal regulations on compensation for damages caused by environmental pollution have caused increasing public outrage over violations of environmental protection. This is also the social motivation to promote research and improvement of regulations on environmental restoration responsibility and compensation for damages caused by environmental pollution. In particular, further improvement of legal regulations on environmental protection and civil law with more specific and clear regulations, ensuring that those who suffer damages due to acts of environmental pollution have a full and legal basis to request protection of their legitimate rights and interests is very necessary.

3.2.2. Directions for improving the law

Based on the current status of Vietnamese law on compensation for damage caused by environmental pollution and from the practical application of legal regulations on compensation for damage in the environmental field in our country in recent times, as well as through research and learning from the experience of applying environmental damage compensation responsibilities of previous countries, we strongly

Boldly propose directions to improve legal regulations on compensation for damage caused by environmental pollution regarding the following contents.

3.2.2.1. Regulations on the subject entitled to claim compensation in case the damage is a reduction in the function and usefulness of the environment

For damage caused by the decline in the function and usefulness of the environment, the law has not yet determined the subject entitled to claim compensation. Because the decline in the function and usefulness of the environment is a change in the negative direction of the environment, these changes reduce the inherent features of the environment - features that can create favorable conditions, beneficial for the existence and development of humans and living things. Therefore, when the function and usefulness of the environment are reduced, it will create adverse effects on the existence and development of the whole community. That means that if there is damage to the environment, the whole community must bear it. In this case, the damaged person will be identified as the State - the subject representing the common interests of the whole community.

Therefore, when environmental damage occurs, it is necessary to determine who, which agency or organization, has the right or responsibility to represent the state in requesting compensation for damage caused by environmental pollution? In our opinion, determining the subject with the right to request compensation for environmental damage in the event of damage caused by the decline in function and usefulness of the environment can be determined in the following direction:

- The State, represented by the State agency directly managing the environmental component, is the subject with the right to claim compensation for damages in cases where the State does not assign or lease the right to use the environmental component.

- In case the State has assigned the right to use an environmental component to an organization or individual or leased the right to use it to an organization or individual, that organization or individual is the subject entitled to claim compensation for damages.

In case these subjects do not exercise their rights, the State is the one with the right to demand compensation for environmental damage.

3.2.2.2. Determine the principle of division of responsibility when many people commit acts of violating environmental laws causing damage.

In the field of compensation for damage caused by environmental pollution, there are many cases where many organizations and individuals commit illegal acts that cause environmental pollution and cause damage to others. In cases where the level of fault of each subject cannot be determined, according to Article 616 of the 2005 Civil Code, " they must compensate for damage in equal parts ." In cases where the level of fault of each subject causing damage can be determined, " the compensation responsibility of each person causing damage is determined in proportion to the level of fault of each person; but the law has not yet stipulated the principle for dividing compensation responsibility among these people. Therefore, to ensure fairness in compensation responsibility, it is necessary to study and supplement the principle of dividing compensation responsibility according to the proportion of damage caused by each subject in the total damage they jointly caused.

3.2.2.3. Specific regulations on determining damage to each environmental component

According to the provisions of the Law on Environmental Protection 2005, environmental components include physical elements that make up the environment such as land, water, air, sound, light, organisms, ecosystems and other physical forms. It is thought that, at present, to ensure feasibility, damage to the natural environment should only focus on the following components: 1) Land; 2) Water; 3) Air; 4) Ecosystem. In particular, for damage to land, it is necessary to distinguish between agricultural land and non-agricultural land. Damage to water requires a distinction between water for domestic purposes, water for agricultural production, aquaculture and water for recreation, entertainment, tourism and relaxation. For damage to environmental components

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