NGUYEN MINH DUC
Doctor, Lawyer, Lecturer, Department of Law,
Faculty of Accounting and Finance, Van Hien University

ABSTRACT
Compensation for non-contractual damages is a fundamental institution of civil law, serving to protect the legitimate rights and interests of individuals and to ensure social order and stability. The 2015 Civil Code, together with Resolution 02/2022/NQ-HDTP, provides clearer guidance on the grounds for liability, required conditions, methods for determining “actual damage,” and the principles and scope of compensation. However, practical adjudication reveals persistent challenges, including difficulties in proving damages and causation, allocating liability among multiple related parties, and quantifying mental damages, particularly as new forms of harm continue to emerge. Using a legal-analytical and comparative approach grounded in current statutory provisions and selected typical cases, this study identifies existing limitations and proposes directions for improving the legal framework governing non-contractual damage compensation.

Keywords: compensation for non-contractual damages, civil liability, Civil Code 2015, Resolution No. 02/2022/NQ-HDTP, actual damages.

1. Introduction

In social life, acts infringing upon life, health, honor, dignity, reputation, property, and other lawful rights and interests arise not only from contractual relationships but also, and very commonly, outside contractual relations. The increase in traffic accidents, environmental pollution, unsafe products, infringements of personal rights in cyberspace, and personal-data leaks demonstrates that the legal regime governing compensation for non-contractual damages has become increasingly pivotal within the civil-law system.

The 2015 Civil Code devotes Chapter XX to relatively comprehensive rules on liability for non-contractual damages. Compared with the 2005 Civil Code, this represented an important advance through the restructuring of provisions, clarification of the grounds giving rise to liability and compensation principles, and expansion of several special-liability situations. In parallel, Resolution No. 02/2022/NQ-HDTP of the Council of Justices of the Supreme People’s Court replaced Resolution No. 03/2006/NQ-HDTP and provides more detailed guidance on the grounds for liability, “actual damage,” compensation principles, and the treatment of a number of typical situations.

Nevertheless, dispute-resolution practice continues to reveal considerable difficulties: the burden of proving damage and causation in complex cases; inconsistency in determining compensation for mental suffering; difficulties in allocating liability where several persons participate in causing damage or where the injured party is also at fault; and legal gaps concerning new forms of damage associated with the environment, digital technology, and online platforms.

This article provides an overview of selected theoretical approaches and representative studies; analyzes the provisions of the 2015 Civil Code and Resolution No. 02/2022/NQ-HDTP on compensation for non-contractual damages; identifies issues arising in practice; and, on that basis, proposes recommendations for improving both the law and its implementation.

2. Literature Review and Theoretical Foundations

2.1. Overview of selected domestic and international research directions

In comparative legal scholarship, compensation for non-contractual damages corresponds to the rules on non-contractual civil liability in the world’s two major legal traditions: common law and civil law. Research in these systems generally revolves around three major groups of issues. First are the functions of non-contractual liability, including compensating injured persons, deterring and preventing dangerous conduct, and allocating social risks to actors better able to control those risks. Second is the structure of the elements giving rise to liability, commonly identified as unlawful conduct, damage, causation, and fault. Third is the shift from fault-based liability toward forms of objective or strict liability, particularly in high-risk fields such as product liability, environmental protection, and highly dangerous sources.

In Vietnam, many civil-law textbooks and monographs have examined compensation for non-contractual damages in a relatively systematic manner, primarily by explaining statutory provisions, classifying types of damage, and analyzing liability for damage caused by highly dangerous sources, minors, and persons belonging to agencies or organizations. In addition, articles in legal journals have separately addressed such matters as the principle of full and timely compensation, mental damage, environmental liability, and consumer protection. However, since the 2015 Civil Code took effect, and particularly following the issuance of Resolution No. 02/2022/NQ-HDTP, the context in which this legal regime is applied has changed considerably. Recent studies have mainly focused on interpreting Resolution No. 02/2022/NQ-HDTP, while systematic research examining the Resolution in its overall relationship with Chapter XX of the 2015 Civil Code, as well as against new forms of damage arising from digital transformation and the digital economy, remains limited.

2.2. Selected theoretical approaches to compensation for non-contractual damages

From a theoretical perspective, compensation for non-contractual damages may be approached in three principal ways.

First is the functional approach. Under this approach, non-contractual liability not only compensates the injured person but also deters and educates the person causing damage and allocates social risks to actors that are better positioned to control and prevent them, such as owners of highly dangerous sources, manufacturers, and service providers.

Second is the approach based on the structural elements of liability. The 2015 Civil Code and Resolution No. 02/2022/NQ-HDTP continue to maintain the four classical elements of infringing conduct, damage, causation, and fault, while supplementing and clarifying concepts such as “actual damage” and “damage arising after the time of the initial compensation.”

Third is the approach based on the degree of dependence on fault. Alongside fault-based liability, modern law increasingly recognizes objective liability, typically liability for damage caused by highly dangerous sources, in order to provide stronger protection for injured persons and encourage actors creating high risks to invest in prevention.

3. Research Methodology

The article primarily employs qualitative legal research methods. It first uses doctrinal analysis and synthesis of legal norms, focusing on Chapter XX of the 2015 Civil Code, Resolution No. 02/2022/NQ-HDTP on liability for non-contractual damages, and several related legal instruments. It then applies an internal comparative-law method, mainly comparing the 1995, 2005, and 2015 Civil Codes and examining the transition from Resolution No. 03/2006/NQ-HDTP to Resolution No. 02/2022/NQ-HDTP. The article also uses case analysis based on examples contained in Resolution No. 02/2022/NQ-HDTP and selected published judgments and academic discussions, thereby identifying bottlenecks in application. Overall, the approach is normative, aiming to provide commentary and policy recommendations based on an assessment of the reasonableness and feasibility of the current rules.

4. Legal Framework for Compensation for Non-Contractual Damages

4.1. Grounds for liability under the 2015 Civil Code and Resolution No. 02/2022/NQ-HDTP

Article 584 of the 2015 Civil Code establishes liability for non-contractual damages on the basis of four classical elements: infringing conduct, damage, causation, and fault. Resolution No. 02/2022/NQ-HDTP maintains this structure while providing more specific guidance on each element. Infringing conduct must violate life, health, honor, dignity, reputation, property, or other lawful rights and interests, and may take the form of an act or an omission where a person fails to perform a legal obligation that he or she is required to perform.

Actual damage is understood as damage that has occurred and can be valued in monetary terms at the time the dispute is resolved, including both material and mental damage. Where additional damage arises after the initial compensation, further compensation may be claimed if such damage can be proven. Causation exists where the damage is the necessary or direct result of the infringing conduct; the Resolution emphasizes consideration of the chain of related events, in which the conduct of the person causing the damage must have played a significant role in producing the loss. Fault remains a basic condition, but the Resolution also confirms liability irrespective of fault where the law so provides and guides the reduction of compensation where the damage was caused unintentionally and the person liable is in particularly difficult economic circumstances.

A notable feature of Resolution No. 02/2022/NQ-HDTP is that it does not merely restate the 2015 Civil Code but also provides specific illustrative situations, such as a person deliberately throwing himself or herself into a vehicle to commit suicide and emergency situations in traffic. These examples help standardize the interpretation of fault, necessity, and the injured party’s own fault, thereby giving courts a more concrete basis for application.

4.2. Special cases of liability

The 2015 Civil Code continues to recognize and classify a number of special cases of non-contractual liability, which Resolution No. 02/2022/NQ-HDTP develops in greater detail. For damage caused by minors or persons lacking civil act capacity, parents, guardians, or representatives may be required to compensate where they are at fault in management or education. Where they have fully performed their obligations but damage nevertheless occurs, part of the compensation obligation may be borne by the person causing the damage if that person is at least 15 years old and has separate property.

For damage caused by highly dangerous sources, the 2015 Civil Code continues to impose stringent liability on owners and lawful possessors or users. Resolution No. 02/2022/NQ-HDTP further clarifies liability where such a source is unlawfully possessed or used and the allocation of joint liability between the owner and the unlawful possessor.

Liability of legal persons and state agencies is also emphasized. A legal person must compensate for damage caused by its personnel while performing assigned duties and may subsequently seek reimbursement from the person who caused the damage according to the degree of fault. The State and state agencies must compensate in cases prescribed by law, together with an internal reimbursement mechanism. This design reflects an increasing tendency in Vietnamese law to allocate risks to actors that perform managerial roles and are better able to control risks, rather than focusing exclusively on individual fault.

4.3. Principles and amount of compensation

The 2015 Civil Code retains the principle that “damage must be compensated in full and in a timely manner,” while adding mechanisms for adjusting the amount of compensation in cases of unintentional fault and particularly difficult economic circumstances of the person causing the damage. It also permits the court and the parties to choose flexible forms of compensation, including money, property in kind, or performance of specified work.

Resolution No. 02/2022/NQ-HDTP gives more detailed guidance on specific heads of damage, including medical and treatment expenses, lost income, caregiving expenses, and reasonable expenses incurred to prevent, limit, or remedy damage. It clarifies the relevant time for assessing damage, particularly for continuing losses and additional losses arising after the first compensation. With respect to mental damage, the Resolution provides reference frameworks and criteria linked to the degree of suffering, the type of right infringed, and socio-economic conditions, thereby helping reduce excessive disparities among judgments in comparable cases.

5. Issues Arising in Practice

5.1. Proving damage and causation in complex cases

In “traditional” cases such as straightforward traffic accidents or direct acts of violence, proving damage and causation is relatively clear. In more modern disputes, however, such as environmental pollution, products causing long-term harm, personal-data infringements, or harmful content on digital platforms, determining actual damage and its direct connection with the infringing conduct becomes more complex. Multiple intervening factors and different sources of risk may coexist, making it difficult to attribute liability to a specific actor.

Resolution No. 02/2022/NQ-HDTP provides a relatively comprehensive definition of actual damage, but the burden of proof still rests primarily on the injured party. Where the party causing the damage enjoys overwhelming advantages in information, technology, and financial resources - as is often the case with large enterprises, manufacturers, or digital-platform providers - the injured person’s ability to collect evidence is very limited. This creates a risk that progressive rules on compensation for non-contractual damages may remain effective only “on paper” and be difficult to realize fully in practice.

5.2. Mental damage and loss of chance

Mental damage is the most difficult component of non-contractual damages to quantify. Although the 2015 Civil Code and Resolution No. 02/2022/NQ-HDTP establish a compensation mechanism and provide reference frameworks, adjudication still shows substantial variation in awards for mental suffering among cases of a similar nature. Such disparities make dispute outcomes difficult to predict and reduce confidence in the stability and predictability of the law.

Another emerging area of debate is recognition of loss of chance, such as the loss of an opportunity to enter into a contract, obtain a professional promotion, or access a service because of another person’s unlawful conduct. The 2015 Civil Code does not currently contain a separate provision on this form of damage, leaving courts uncertain when confronted with comparable situations. Without clear recognition, genuine socio-economic losses arising from lost opportunities may easily be overlooked.

5.3. Allocation of liability among multiple actors and where the injured party is also at fault

Many non-contractual damage cases involve multiple actors: the person directly causing the damage, the owner of a dangerous source, a manager, a third party whose fault contributed to creating a dangerous situation, and even the injured party who may bear part of the fault. The 2015 Civil Code and Resolution No. 02/2022/NQ-HDTP permit compensation liability to be apportioned according to the degree of fault and provide guidance for certain specific situations, including emergency circumstances and cases where an injured person deliberately throws himself or herself into a vehicle to commit suicide. In many other situations, however, the relative degree of fault attributable to each party continues to depend primarily on the qualitative assessment of the adjudicating panel, with few quantitative criteria or sufficiently detailed guidelines.

For example, apportioning fault among a business owner, a machine operator, a maintenance-service provider, and a consumer who has not fully complied with instructions for use frequently raises difficult questions. Without a relatively consistent framework of criteria, the allocation of liability may vary significantly among similar cases, reducing consistency in adjudication.

5.4. Legal gaps concerning new forms of damage

The rapid development of the digital economy, artificial intelligence, e-commerce platforms, and social networks has generated numerous new forms of damage, including personal-data infringements; online defamation that harms reputation and professional opportunities; algorithmic errors in transactions; accidents caused by autonomous vehicles; and AI-generated content that infringes personal rights or causes damage to third parties.

At present, the 2015 Civil Code and Resolution No. 02/2022/NQ-HDTP mainly provide a general framework and do not contain specialized provisions or developed precedents for these situations. On the one hand, courts may rely on traditional concepts such as infringing conduct, fault, and highly dangerous sources and extend them to new circumstances. On the other hand, this approach carries the risk of inconsistent application among courts and reduces legal certainty for the parties concerned, particularly technology enterprises and consumers in the digital environment.

6. Conclusions and Recommendations

6.1. Conclusions

The regime governing compensation for non-contractual damages under the 2015 Civil Code, as specified by Resolution No. 02/2022/NQ-HDTP, has established a relatively complete legal framework for protecting the lawful rights and interests of persons whose rights are infringed outside contractual relationships. Clarifying the grounds for liability, the concept of “actual damage,” compensation principles, and detailed guidance for a number of typical situations are noteworthy advances in legislative technique and legal application.

Nevertheless, practice continues to reveal numerous challenges, particularly in proving damage and causation, quantifying mental damage, allocating liability among multiple actors, and dealing with new forms of harm in the context of digital transformation. Without further adjustments, the gap between law and social reality may continue to widen.

6.2. Recommendations for legislation and application guidance

From a legislative perspective, the rules on compensation for non-contractual damages should be further refined by expressly recognizing loss of chance where there is a sufficient basis for establishing both the probability of the opportunity occurring and its economic value. More detailed guiding criteria should also be added for determining compensation for mental suffering, with a view to limiting excessive disparities among comparable cases.

In addition, a more flexible allocation of the burden of proof should be studied for complex cases involving significant informational asymmetry between the parties, such as disputes concerning the environment, products, or digital platforms. This may include strengthening the explanatory and disclosure obligations of the party causing damage and, in certain special cases, considering a reversal of the burden of proof to protect the weaker party.

Greater synthesis of adjudicative practice and development of precedents on non-contractual damages - particularly in cases involving the environment, personal data, e-commerce platforms, and digital services - are also important for establishing more consistent lines of application and enhancing legal predictability. Finally, the continued development of this area of law should selectively harmonize with international standards, particularly in consumer protection, product liability, and personal-data protection, thereby improving the handling of disputes involving foreign elements and strengthening the competitiveness of Vietnam’s legal environment.

6.3. Recommendations for adjudicative bodies and relevant actors

For adjudicative bodies, courts should proactively apply Resolution No. 02/2022/NQ-HDTP in an open and flexible manner while respecting the limits of the instrument and closely coordinating its application with the 2015 Civil Code and relevant specialized laws, including environmental protection law, consumer-rights protection law, cybersecurity law, and personal-data protection rules.

It is essential to enhance the professional capacity and evidence-assessment skills of judges, procurators, and lawyers, especially in disputes involving advanced technology, big data, and algorithms. Cooperation with technical experts, valuation experts, and independent assessment organizations should be strengthened in order to improve adjudicative quality and the persuasiveness of judgments.

For enterprises and citizens, legal dissemination and education concerning compensation for non-contractual damages should be promoted. Enterprises should be encouraged to establish legal-risk governance mechanisms, use civil-liability insurance, and develop internal complaint-handling mechanisms to reduce the burden on courts and limit damage. Citizens should be equipped with basic knowledge of their rights and obligations in civil relations, as well as skills for collecting and preserving evidence when non-contractual damage occurs.

References

Ministry of Justice. (2015). Selected legal provisions on compensation for non-contractual damages. Ministry of Justice Electronic Information Portal.

National Assembly. (1995). Civil Code, Law No. 44-L/CTN.

National Assembly. (2005). Civil Code, Law No. 33/2005/QH11.

National Assembly. (2015). Civil Code, Law No. 91/2015/QH13.

Council of Justices of the Supreme People’s Court. (2006). Resolution No. 03/2006/NQ-HDTP dated 8 July 2006 guiding the application of several provisions of the 2005 Civil Code on compensation for non-contractual damages.

Council of Justices of the Supreme People’s Court. (2022). Resolution No. 02/2022/NQ-HDTP dated 6 September 2022 guiding the application of several provisions of the Civil Code on liability for compensation for non-contractual damages.

Nguyen Van Hoi. (2017). New points in the provisions of the 2015 Civil Code on liability for compensation for non-contractual damages. Journal of Law, No. 3, p. 39.

Ngo Huy Cuong. (2018). Liability for compensation for damage caused by unsafe food under the law. Legislative Studies Journal, No. 12 (364).

Le Ha Huy Phat & Tran Tien Doan. (2017). Compensation for non-contractual damages in sports - A perspective from football. Vietnamese Journal of Legal Sciences, No. 9 (112).

Tran Phi Long, Bui Thi My Huong & Nguyen Huynh Anh. (2020). Liability for compensation for non-contractual damages involving foreign elements - Current situation and directions for improvement. Industry and Trade Magazine - Scientific Research Results and Technology Applications, No. 12, May 2020.

 

Article received: 20 September 2025
Reviewed and revised: 10 October 2025
Accepted for publication: 23 October 2025