|
THE GOVERNMENT
-------
|
SOCIALIST REPUBLIC OF
VIET NAM
Independence - Freedom – Happiness
----------
|
|
No. 45/1998/ND-CP
|
Hanoi, July 01, 1998
|
DECREE
STIPULATING IN DETAIL THE TECHNOLOGY TRANSFER
THE GOVERNMENT
Pursuant to the Law on Organization of the
Government of September 30, 1992;
Pursuant to the Civil Code of October 28, 1995;
At the proposal of the Minister of Science, Technology and Environment,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Objects and
scope of application
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. The technology transfer provisions in the
Civil Code and this Decree shall apply to:
a/ The transfer of technologies from abroad into
Vietnam;
b/ The transfer of technologies in
foreign-invested projects in the form of making capital contribution with the
value of the technologies or purchasing technologies on the basis of contracts;
c/ The commercial transfer of domestic
technologies between the contracting parties;
d/ The transfer of technologies from Vietnam
abroad.
3. The parts on technology transfer in the
equipment import contracts or in technology transfer contracts attached to the
equipment import contracts shall have to comply with this Decree.
4. The technology transfer within the framework
of the international agreements which Vietnam has signed or acceded to and
which provide for differently from this Decree, shall comply with such
international agreements.
Article 2.-
Interpretation of terms
The terms in this Decree are construed as
follows:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. The "transferor" means the
"technology transferor" mentioned in the Civil Code.
3. The "transferee" means:
a/ The "technology transferee"
mentioned in the Civil Code;
b/ The "transferee of the right to use
industrial property objects" mentioned in Article 816 of the Civil Code.
4. The payment price of a technology transfer is
the total sum of money to be paid to the transferor throughout the effective
term of the contract.
5. "Secrets" are important and
confidential technical experiences, knowledge or information accumulated or
discovered in the process of research, production or business, capable of
creating high-quality services or products yielding high economic efficiency
and creating competitive edges on the market.
6. Domestic technology transfer is the transfer
of technologies within the territory of Vietnam, except for the transfer across
the boundaries of export processing zones.
7. Transfer of technologies from abroad into
Vietnam is the transfer of technologies from outside the national boundary or
from an export processing zone of Vietnam into the territory of Vietnam.
8. Transfer of technologies from Vietnam abroad
is the transfer of technologies from inside the national boundary to outside
the national boundary of Vietnam or into an export processing zone.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a/ The turnover tax, the special consumption tax
or the value added tax;
b/ Commercial discount;
c/ Full expenses for the purchase of
semi-finished products, details and components from whatever supplying sources;
d/ Expenses for packs, packaging, transportation
and advertising.
Semi-finished products, parts, details,
components and expenses mentioned in Items c and d of this Clause shall be
determined in the contracts, depending on the technology and types of products
made from the transferred technology.
10. The "date of issuance of the
permit" mentioned in Article 811 of the Civil Code is the date the
competent agency approves the technology transfer contract as stipulated in
Article 32 of this Decree.
Article 3.- Technology
transfer conditions
Individuals, legal persons or other subjects
shall be entitled to transfer technologies mentioned in Article 807 of the Civil
Code when they fully satisfy the following conditions:
1. The transferor is the lawful owner of the
technology or is entitled to transfer the right to use the technology.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 4.- Contents of
technology transfer
The technology transfer includes:
1. The transfer of industrial property objects:
patents, utility solutions, industrial designs and trademarks which are being
protected by Vietnamese laws and permitted to be transferred.
2. The transfer of technological secrets and
know-hows in the forms of technological options, technical solutions,
technological processes, preliminary design and technical design documents,
formulas, technical parameters, drawings, technical diagrams, computer software
(which are transferred under the technology transfer contracts), database on
the transferred technologies (hereafter called technical information for short)
accompanied or unaccompanied with machinery and equipment.
3. The transfer of production rationalization
and technology renovation solutions.
4. The provision of various services in support
of the technology transfers so as to enable the transferees to acquire the
technological capability in order to create products and/or services of the
quality determined in the contracts, including:
a/ Support in the selection of technologies,
guidance on the installation of equipment, test operation of equipment lines
before applying the transferred technology(ies);
b/ Providing consultancy on technological
management and/or business management as well as guidance on the operation
processes of the transferred technology(ies);
c/ Training to raise the professional and
managerial skills of workers, technicians and managerial personnel in order to
make them firmly grasp the transferred technology(ies).
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 5.- Technologies
which are not allowed to be transferred
The technologies which are not allowed to be
transferred under Article 808 of the Civil Code include:
1. Technologies that fail to meet the
requirements prescribed by Vietnamese laws for labor safety, labor hygiene,
human health and environmental protection.
2. Technologies that may cause adverse impacts
and consequences to Vietnam's culture, defense, national security, social order
and safety.
3. Technologies that do not bring about any
technical, economic or social efficiency.
4. Technologies in service of security and
defense but not yet permitted by the competent State agencies.
Article 6.- Guaranteeing
the right to use the transferred industrial property objects not to be
infringed upon by a third party
If a third party infringes upon the right to use
the transferred industrial property objects, it shall be handled in accordance
with the industrial property legislation.
Article 7.- The right to
develop the transferred technologies
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. The transfer of modifications and/or
develop-ments of the transferred technologies as agreed upon in the signed
contracts or through a new or additional contract shall be made by the
contracting parties on the basis of equality and mutual benefit.
Chapter II
TECHNOLOGY TRANSFER
CONTRACTS
Article 8.- Form of
contracts
1. All technology transfer activities must be
carried out on the basis of written contracts for technology transfer
(hereafter called as contracts for short) and comply with the provisions of
this Decree. Contracts shall serve as the basis for the parties to fulfill their
commitments and ensure the legality of the technology transfer, payment and
dispute settlement.
2. Contracts may be established for the transfer
of one or more than one technological content stipulated in Article 4 of this
Decree.
In cases where the transferor transfers to the
transferee more than one technological content, the transfer of such contents
must be effected together under one contract.
In cases where the transferor transfers a
technology accompanied with machinery, equipment and technical facilities, a
list of such machinery, equipment and technical facilities must be enclosed
with the contract.
3. For contracts for the transfer of production
equipment lines or the transfer of complete equipment or equipment of an
investment project which contain a content on technology transfer, a separate
part of the equipment import contract must be made for such technology
transfer. The technology transfer expenses must be separately calculated (not
included in the equipment costs).
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 9.- Industrial
property objects in technology transfer
In cases where the transferor transfers to the
transferee the right to own or use industrial property objects and other
contents mentioned in Article 4 of this Decree, the transfer of the right to
own or use industrial property objects shall be made into a separate part of
the technology transfer contract.
The part on the transfer of the right to use or
own industrial property objects in the technology transfer contracts shall be
subject to the industrial property legislation.
Article 10.- Contracts
for the transfer of the results of new technology research and development.
1. The State encourages the transfer of the
results of new technology research and development in accordance with the
provisions of this Decree, on the basis of protecting confidential information
as well as commercial secrets in accordance with the provisions of Vietnamese
laws and international agreements which Vietnam has signed and/or acceded to.
2. The transfer of the results of new-technology
research and development involving the use of the State capital shall comply
with not only the provisions of this Decree but also the regulations on the use
of State capital in scientific and technological activities.
3. The transferor and the transferee of the
results of new technology research and development shall agree upon the right
to submit applications for the protection of industrial property objects, the
mode of payment and levels of remuneration for the author(s) of the results of
such new technology research and development.
4. In cases where the parties have no agreement
in their contracts on the right to submit applications for the protection of
industrial property objects, the transferee of the results of new technology
research and development shall be entitled to submit an application for the
protection of the industrial property right with regard to the results of new
technology research and development and shall have to pay remuneration to their
author(s) when using the results of such technology research and development in
accordance with the provisions of the industrial property legislation.
Article 11.- Contents
of contracts
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. Names and addresses of the transferor and the
transferee:
- Names and positions of the representatives of
the parties and their account numbers.
- Summaries of the transferor's results of the
research and development activities or business and production results related
to the transferred technology(ies).
2. Definitions of concepts and terms used in the
contract.
3. Contents of the transferred technology(ies):
a/ Name(s) of the technology(ies);
b/ Detailed description of the characteristics, contents,
labor safety and hygiene degrees of the transferred technology(ies); in cases
where the transferor supplies machinery and equipment together with other
contents of the technology(ies), the contract must clearly state the list of
such machinery and equipment with their technical specifications, code numbers,
manufacturing country(ies), manufacturing year(s), quality status and prices.
c/ The specific results to be achieved after the
transfer is made (in terms of the quality of the commercial products or
services, economic and technical norms, productivity, and social and
environmental factors).
4. The contents of the transfer of the
industrial property right (if any) in accordance with the industrial property
legislation.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
6. Time limit, tempo and place for the supply of
the technology(ies), machinery and equipment.
7. The contents related to the training and
technical support to ensure the effectuation of the technology transfer,
including:
a/ The details of the training program, form,
subject areas, number of trainees and specialists of the transferor and
transferee, venue, duration;
b/ Responsibilities of the parties in organizing
the training and technical support;
c/ Qualifications, quality and results achieved
after the training and technical support are provided;
d/ Expenses for training and technical support.
8. Prices and payment:
a/ Prices, conditions and mode of payment (kind
of currency, place, time limit...);
b/ In cases where the transferred technology
contains several different contents in the contract, the payment for each
transferred content and the price of payment for the transfer of the industrial
property right must be clearly stated;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
9. Commitments of the parties to guaranty,
warranty and warranty period:
a/ The transferor undertakes to have the lawful
right to the technology transfer;
b/ The transferee undertakes to strictly follow
the technical information supplied by the transferor;
c/ On the basis of the strict observance of the
transferor's instructions by the transferee, the transferor shall have the
obligation to ensure the realization of the technology transfer so as to
achieve the following results:
- Achieving the objectives set in the contract;
- The technology(ies) creates commercial goods
or services which meet the quality criteria clearly set in the contract;
- The technology(ies) satisfy the
technical-economic norms, the raw material, fuel and material consumption norms
clearly set in the contract;
- The technology ensures compliance with the
legislation on environment, labor safety and labor hygiene.
d/ Other commitments of the parties in order to
ensure that no mistakes shall be made during the technology transfer and the
use of the results after the expiry of the contract's effective term;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- The transferor shall have to provide warranty
for the transferred technological contents, including the quality of machinery
and equipment (if they are supplied by the transferor), within a period agreed
upon in the contract by the parties;
- In cases where the parties do not agree
otherwise the warranty duration shall coincide the effective term of the
contract;
- If, during the warranty period, the transferee
strictly follow the transferor's instructions but the created commercial products
or services or the technology(ies) fail to meet the set criteria, the
transferor shall have to apply the remedial measures with its own expenses.
10. The parties' obligation to cooperate and
exchange information.
11. Conditions for amending and canceling the
contract.
12. The effective term of the contract and
conditions for the parties to alter the effective term of or terminate the
contract.
13. The scope and extent of confidentiality with
regard to the transferred technology(ies).
14. Each party's liabilities when the
commitments in the contract are breached .
15. Matters related to disputes arising from the
contract:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b/ Form and procedures for dealing with disputes;
c/ The dispute-handling agencies (the trial
agency or the agency to expertize the quality and price of the transferred
technology(ies)).
16. Date and place of making the contract, full
names and signatures of the representative of each contracting party.
17. The appendices detailing the contract's
provisions: lists of products and their quality criteria, the training and
technical support plans, lists of relevant documents or information. The
above-mentioned appendices shall constitute an inseparable part of the
contract.
Apart from the above-mentioned principal
contents, the parties may agree to include in the contract other provisions
which are not contrary to the State regulations and the laws of Vietnam.
Article 12.- The
language used in the contracts
The technology transfer contracts and their
enclosed documents must be made in the Vietnamese language. In cases where the
contracting parties are foreign individuals, legal persons or organizations,
the contract documents may be also made in a universal foreign language agreed
upon by the parties. The contract documents in the Vietnamese language and in a
foreign language shall be of equal legal effect.
Article 13.- Provisions
not allowed to be included in the contracts:
The following contents shall not be allowed to
be included in the contracts:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a/ Raw materials, materials;
b/ Production means: machinery, equipment and/or
transport means;
c/ Intermediary products;
d/ Manual labor;
e/ The right to use industrial property objects;
In cases where the technology(ies) requires
special guarantees regarding raw materials, materials, accessories, production
means, intermediary products, technically qualified workforce or the right to
use accompanied industrial property objects, such content must be explained in
detail and agreed upon by the parties.
2. Forcing the transferee to accept a number of
given norms (except for cases where the technology(ies) is(are) transferred to
perform product-processing contracts) regarding:
a/ The production scope, quantity of products
(or groups of products);
b/ The selling prices of products;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. Restricting the product consumption markets,
the export markets, the quantities and the structures of groups of products to
be exported by the transferee.
4. Stipulating that the transferee is not
allowed to go on with the transferred technology(ies) research and development
or to receive similar technologies from other sources.
5. Forcing the transferee to unconditionally
transfer to the transferor the right to use the results of the technological
modifications or renovations created by the transferee from the transferred
technology(ies), the right to lodge applications for the protection of the
industrial property and industrial property rights and other rights of such
technological modifications or renovations.
6. Exempting the transferor's liabilities for:
- The transferor's faults in the technology
transfer;
- Machinery and equipment supplied by the transferor
which fail to meet the quality as defined in the contract.
7. Forbidding the transferee to continue using
the transferred technology(ies) after the expiry of the contract's term (except
for industrial property objects still in the duration of being protected in
Vietnam).
In cases where the parties agree that the
transferee shall not continue to use the transferred technology(ies) after the
expiry of the contract's term, they must explain the reasonability of such
agreement and their contract must be approved by the competent technology
transfer management agency (for contracts that must be approved as stipulated
in Clauses 1 and 2, Article 32 of this Decree).
Article 14.- The time
when the contracts come into effect
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. For contracts that must not be approved but
must be registered with the Ministry of Science, Technology and Environment as
stipulated in Clause 3, Article 32 of this Decree, they shall come into effect
from the date they are registered with the Ministry of Science, Technology and
Environment.
3. If a contract contains a part on the transfer
of industrial property objects, such part shall come into effect from the date
it is registered with the competent State agency as prescribed in the
industrial property legislation.
Article 15.- Term of
contracts
1. The term of a contract is the duration in
which the contract is effective.
The term of a contract shall be agreed upon by
the parties according to the requirements and contents of the transferred
technology(ies) but the maximum term shall not exceed seven years from the date
the contract comes into effect.
2. If the parties agree upon their contract's
term being longer than the term stipulated in Item 1 of this Article, the
competent State agency may permit such term to be longer than seven years but
not exceed 10 years in the following cases:
a/ The technology(ies) is (are) of the world's
advanced type and the transferor pledges to continue to transfer modifications
throughout the contract's term;
b/ The transferred technology(ies) is (are) of
great significance for the socio-economic development;
c/ The transferred technology(ies) creates
commercial products of new generation(s) in the world.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 16.- Obligation
to perform the contracts
The technology transferor and transferee shall
be obliged to realize their agreement on each party's rights and obligations
defined in the contract, if a party violates the agreed provisions, it shall be
liable for its violations according to the contract's provisions on violations.
Article 17.- Mode of
settling disputes
1. In the course of performance of a contract,
the disputes between the parties shall be first of all settled through
negotiation and conciliation.
2. In cases where the parties do not agree to
settle their disputes at a arbitration body, the disputes shall be brought to
the trial agency for settlement.
3. The disputes between Vietnamese organizations
or individuals shall be settled in accordance with the Vietnamese laws at the
arbitration bodies or trial agencies of Vietnam.
4. In cases where a dispute arising from a
contract involves a party being a foreign individual, legal person or
organization, it shall be settled at an arbitration body if the parties agree
in their contract that an arbitration body shall be selected to settle
disputes.
In cases where the parties have no agreement on
the settlement of disputes at an arbitration body, the dispute shall be settled
at a trial agency.
Article 18.-
Invalidated contracts
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a/ The contracting transferor fails to meet all
the conditions stipulated in Article 3 of this Decree;
b/ Contracts for the transfer of the
technologies which fall into the category(ies) not allowed to be transferred as
stipulated in Article 5 of this Decree or the transfer of such technologies is
contrary to the provisions of law;
c/ The contracts have not yet been registered,
approved or the approval decisions are withdrawn under the provisions of this
Decree;
d/ The right to own or use industrial property
objects related to the transferred technology(ies) is suspended or canceled at the
time the technology transfer contract is entered into (in accordance with the
industrial property legislation).
2. A contract shall be regarded as partially
invalidated when one of its contents violates the provisions of law but does
not affect the contents of the other parts of the contract.
Article 19.- Legal
consequences of invalidated contracts
1. When a contract is wholly invalidated:
a/ The parties must refrain from performing the
contract if it has not yet performed;
b/ If the contract is being performed, the
parties shall have to stop performing it;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. When a contract is partially invalidated:
a/ The parties shall have to agree to either
amend the contract in accordance with the provisions of the Civil Code and this
Decree or cancel the contract's part which is regarded as invalidated;
b/ In cases where the performance of a partially
invalidated contract causes legal consequences like a wholly invalidated
contract, the provisions in Clause 1 of this Article shall apply.
Article 20.-
Supplementing, amending or canceling part of a contract
A technology transfer contract may be
supplemented, amended or canceled in part if so consented by all the parties.
For contracts that must be approved as
stipulated in Article 32 of this Decree, any supplement, amendment, replacement
or cancellation of part of such a technology transfer contract shall be
effective only after it is approved in an additional approval decision by the
agency that has approved the contract.
Article 21.-
Termination of contracts
1. A contract shall terminate in the following cases:
a/ It has expired as stipulated in the contract;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
c/ A force majeure occurs and the parties agree
to terminate the contract;
d/ It is canceled or suspended by the competent
State agency managing the technology transfer as it has violated the laws;
e/ An already effective contract may be canceled
upon a written agreement between the parties if no damage is caused to the
interests of the State and the society; the parties shall be liable for any
damage caused to a concerned third party by the cancellation of the contract;
For a contract that requires the approval, the
parties shall, when canceling it, have to notify the agency that has approved
the contract thereof.
f/ When a party admits its breach of the
contract or there is a conclusion of a competent State agency that the contract
is breached, the breached party shall be entitled to unilaterally suspend the
performance of such contract.
2. In cases where a contract is terminated under
the provisions of Point a, b or c, Clause 1 of this Article, the contract's
provisions on the settlement of disputes and complaints shall continue to be
effective within the statute of limitation for legal proceeding acts as
prescribed by law.
3. In cases where a contract is terminated under
the provisions in Point d, e or f, Clause 1 of this Article, the breaching
party shall have to pay compensation for the damage caused by its breach of the
contract, except otherwise provided for in the contract.
Article 22.- Test
operation before acceptance and evaluation of contracts
1. The transferor and transferee shall have to
make a report on the evaluation of the results of each stage of the technology
transfer such as:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Evaluation of the contract performance by the
parties according to the technological contents determined in each stage of the
contract;
- Evaluation of the results achieved at the end
of the contract against the set objectives.
These reports shall be sent to the agency that
has approved the contract within 15 days from the date the evaluation is
completed.
2. During the term of a contract, annually the transferee
shall have to report the technology transfer results according to the
contract's contents to the agency that has approved the contract.
These reports shall also be sent to the Ministry
of Science, Technology and Environment.
Chapter III
FINANCIAL PROVISIONS
RELATED TO TECHNOLOGY TRANSFER
Article 23.- Prices of
transferred technologies
1. The prices of machinery and equipment shall
be determined through bidding for the procurement of equipment or through the
examination of their quality and prices.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. For the transfer of technologies from abroad
into Vietnam and the domestic technology transfer, the payment prices for the
technology transfer, including the objects mentioned in Article 4 of this
Decree, which do not include the value of accompanied machinery and equipment,
shall comply with one of the following limits:
a/ From 0% to 5% of the net selling prices of
the products within the effective term of the contract; or
b/ From 0% to 25% of the after-tax profit,
earned from the sale of manufactured products or the provision of services
involving the application of the transferred technology within the effective
term of the contract, or
c/ From 0% to 8% of total investment capital in
cases where capital contributions are made with the value of the
technology(ies).
For projects operating under the Law on Foreign
Investment in Vietnam, the value of the technology as capital contribution
shall not exceed 20% of the legal capital.
4. For the transfer of technologies from abroad
into Vietnam and the domestic technology transfer, the payment price for the
technology transfer, excluding the value of accompanied machinery and
equipment, may account for up to 8% of the net selling prices or up to 30% of
the after-tax profit or up to 10% of total investment capital in cases where
capital contribution is made with the value of the technology(ies)with regard
to technologies that satisfy the following requirements:
a/ The transferred technology(ies) is a high
technology (according to the list announced by the Ministry of Science,
Technology and Environment for each period);
b/ The transferred technology(ies) is of great
significance for the socio-economic development in deep-lying, remote,
mountainous or island areas;
c/ Most of products are for export (or high fees
are paid for the technology(ies) for exported products).
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
For special technologies with the approved
payment amounts for their transfer being higher than the limits prescribed
above, the Ministry of Science, Technology and Environment shall seek for the
Prime Minister's direction.
5. The prices of technologies transferred abroad
from Vietnam shall be agreed upon by the parties in accordance with the laws of
the country of the transferee and approved by the competent State management
agency of Vietnam.
The Ministry of Science, Technology and Environment
shall have to provide detailed guidance on the payment levels stipulated in
this Article.
Article 24.- Modes of
payment
Payment for the technology transfer shall be
agreed upon by the parties according to the following modes:
1. Accounting the whole value of the transferred
technology into the contributed capital of the investment projects.
2. Making periodical payments according to the
percentage of the after-tax profit or the net selling prices.
3. Making lump-sum or installment payments in
cash or goods, suitable to the technology transfer tempo and in accordance with
Vietnam's legislation on the payment in goods. The lump-sum payment shall be
determined according to Article 23 of this Decree.
4. Combining the payment modes mentioned in
Clauses 1, 2 and 3 of this Article.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
For contracts that must be approved as
stipulated in Article 32 of this Decree, if they have not yet been approved by the
competent State agencies they have no legal effect and the technology transfer
costs shall not be allowed to be accounted into the product prices.
Article 26.- Technology
transfer tax
The transferor shall be obliged to pay tax on
the sum of money earned from the technology transfer activity. The technology
transfer tax rates shall comply with the provisions of law.
Article 27.- Fees on
the evaluation of technology transfer contracts
When submitting dossiers of application for the
approval of their technology transfer contracts, the applicants shall have to
pay to the State agency competent to approve such contracts a fee according to
the State regulations.
Chapter IV
STATE MANAGEMENT OVER
TECHNOLOGY TRANSFER
Article 28.- Contents
of the State management over technology transfer
The contents of the State management over
technology transfer include:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. Evaluating, approving and registering
technology transfer contracts, extending, amending or suspending such
contracts.
3. Designating qualified organizations as
prescribed law to expertize the quality of equipment and facilities accompanied
the transferred technology(ies).
4. Formulating the policy on the import of
machinery, equipment, organizing research and application of scientific and
technological advances in the domain of technology transfer.
5. Propagating and popularizing knowledge about
technology transfer, supplying information on technologies.
6. Managing technology transfer consultancy
activities, activities of recognizing or certifying the quality standards as
well as technological processes and/or lines.
7. Supervising and inspecting technology
transfer activities.
8. Settling complaints, denunciations and
handling violations of the technology transfer legislation within the ambit of
their power.
9. Creating favorable conditions for
international cooperation in the domain of technology transfer.
10. Formulating policies and strategies and
training a contingent of cadres specialized in technology transfer.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
The Government shall perform the uniform State
management over the technology transfer activities nationwide and assign,
depending on the functions, tasks and powers of the ministries,
ministerial-level agencies, agencies attached to the Government and People's
Committees of the provinces and cities directly under the Central Government,
responsibilities, to each of these agencies to assist the Government in
performing the State management functions stipulated in Article 28 of this
Decree.
The assignment of the performance of the tasks
and powers of State management over the technology transfer activities to the
ministries, ministerial-level agencies, agencies attached to the Government and
localities aims to:
1. Promote the technology transfer activity
management roles and responsibilities of the ministries, ministerial-level
agencies, agencies attached to the Government and People's Committees of the
provinces and cities directly under the Central Government in supervising and
controlling the technology transfer activities and processes so as to ensure
that the transferred technologies and imported machinery and equipment of
investment projects are advanced and up-to-date, which bring about economic
efficiency in production and business; promptly rectify mistakes and prevent
consequences damaging the property of the State and people; and protect the
people's health and living environment.
2. Ensure the centralized and uniform management
throughout the country and at the same time the rational assignment of
responsibilities suited to the capabilities and specialized technical
profession of each ministry, ministerial-level agency, agency attached to the
Government or locality. The ministries, ministerial-level agencies, agencies
attached to the Government and People's Committees of the provinces and cities
directly under the Central Government shall take direct responsibility to the
Government for their assigned management scope.
Article 30.-
Responsibilities of the ministries, branches and localities
1. Responsibilities of the Ministry of Science,
Technology and Environment:
a/ The Ministry of Science, Technology and
Environment shall act as the functional body to assist the Government in
directing the uniform management over the technology transfer activities
nationwide as stipulated in Article 28 of this Decree;
b/ Coordinating with the concerned agencies in
designating expertizing organizations according to Decree No. 86-CP of December
8, 1995 of the Government on the assignment of State management
responsibilities for the goods quality so as to implement Clause 3, Article 28
of this Decree;
c/ Performing the uniform professional
manage-ment and guiding the materialization of various policies and law provisions
on technology transfer activities. Coordinating with the ministries,
ministerial-level agencies, agencies attached to the Government and People's
Committees of the provinces and cities directly under the Central Government in
supervising and controlling the technology transfer activities and processes;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
e/ Formulating policies and strategies and
training a contingent of cadres specialized in technology transfer.
2. Responsibilities of the ministries,
ministerial-level agencies, agencies attached to the Government and People's
Committees of the provinces and cities directly under the Central Government.
a/ The ministers, the heads of the
ministerial-level agencies and agencies attached to the Government and the
presidents of the People's Committees of the provinces and cities directly
under the Central Government shall have to:
Propose to the Government to issue or issue
according to their respective jurisdiction various State management guidelines,
policies and mechanisms for state management over the technology transfer
activities in the fields and territories under their charge, which are
compatible to the market economy so as to encourage organizations and
individuals to quickly apply scientific and technological advances in order to
produce high-quality products to meet the demands of the domestic and
international markets;
Manage the technology transfer in investment
projects and/or tendered projects which they are competent to approve and
projects which they are authorized by the higher level to approve;
Approve technology transfer contracts assigned
to them in accordance with Article 32 of this Decree;
Coordinate with the Ministry of Science,
Technology and Environment and functional agencies in supervising, controlling
and evaluating the technology transfer under the scope of their management;
b/ For contracts that must be approved as
stipulated in Article 32 of this Decree, the Ministry of Finance shall have to
direct the local financial and taxation agencies to examine the actual
expenditures on the technology transfers according to the approved contracts as
well as the enterprises' observance of the financial regulations on technology
transfers.
c/ The Ministry of Finance shall have to
coordinate with the Ministry of Science, Technology and Environment in issuing
regulations on the fees for the evaluation of technology transfer contracts.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Technology transfer contracts mentioned in
Clause 1 and Clause 2, Article 32 of this Decree must be approved by the
competent State agencies. Contract- approving decisions shall be made according
to a form guided by the Ministry of Science, Technology and Environment.
The agencies that issue approving decisions
shall be entitled to revoke their approving decisions.
Article 32.- Assignment
of the competence to approve contracts
1. The Ministry of Science, Technology and
Environment shall consider, evaluate and approve the following types of
contracts:
a/ Contracts for the transfer of technologies
from Vietnam to foreign country(ies);
b/ Contracts for domestic technology transfer,
including the contents on the transfer of the right to own and/or use
industrial property objects to which one party is a State organization or which
involve capital contributed by the State.
c/ Technology transfer contracts of enterprises
operating under the Law on Foreign Investment in Vietnam. In cases where the
contracting parties have no State-contributed capital, the contract's part on
the transfer of the right to own and/or use industrial property objects shall
not be subject to approval. For contracts with total payment value, excluding
the value of equipment, equivalent to 30,000 USD or less and within one fiscal
year the transferee has only one technology transfer contracts, they shall also
not be subject to approval but must be registered.
d/ Technology transfer contracts of investment
projects which are decided by the Government or the Ministry of Planning and
Investment.
2. The ministries, ministerial-level agencies,
agencies attached to the Government, People's Committees of the provinces and
cities directly under the Central Government and other agencies (which are
entitled to decide investment according to the Regulation on Investment and
Construction Management issued by the Government) shall consider, evaluate and
approve technology transfer contracts of investment projects funded by the
State capital under their respective competence (according to the assignment
under the Regulation on Investment and Construction Management issued by the
Government) which are other than those stipulated in Clause 1 of this Article.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Contracts for the transfer of foreign
technologies into Vietnam which are other than those stipulated in Clauses 1
and 2 of this Article.
- Contracts for domestic technology transfer
which are other than those stipulated in Clause 2 of this Article and valued at
more than 30,000 USD.
4. Within 15 days after issuing the
contract-approving decisions, the ministries, ministerial-level agencies,
agencies attached to the Government and People's Committees of the provinces or
cities directly under the Central Government shall send copies of such
decisions to the Ministry of Science, Technology and Environment.
The ministries and People's Committees of the
provinces or cities directly under the Central Government shall have to
supervise the performance of the contracts approved by themselves.
The Ministry of Science, Technology and
Environment shall have to guide the registration procedures for technology
transfer contracts mentioned in this Article.
Article 33.- Dossiers
of application for contract approval
A dossier of application for contract approval
includes:
1. A request for the contract approval (according
to the form set by the Ministry of Science, Technology and Environment).
2. The technology transfer contract and its
attached appendices.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
The explanation may be prepared by one of the
parties, presenting the rationale of the contract, analysis and calculations
about the market, raw materials, technologies, economic and financial
considerations and the technological efficiency.
4. Information about:
- The legal status, representatives, the
certification of the signatures of the contracting parties' representatives,
the ownership rights and other information about the contracting parties such
as the names and addresses of the company(ies), the guarantors, the account
numbers, the guaranteeing banks, the capital amount and documents
authenticating the industrial property rights being protected in Vietnam;
- In cases where the contracting parties are
joint venture enterprises operating under the Law on Foreign Investment in
Vietnam, the dossiers of application for contract approval must be accompanied
with a paper certifying that the technology transfer contract has been adopted
by the Managing Board on the consensus principle.
Article 34.- Procedures
and time limit for considering dossiers of application for contract approval
1. Dossiers of application for contract approval
shall be sent to the evaluating and approving agencies as stipulated by Article
32 of this Decree.
2. The agencies having approving competence as
stipulated in Article 32 of this Decree shall, within 45 days from the date of
receipt of the dossiers which are valid and in compliance with the provisions
of Vietnamese laws, have to evaluate and issue decisions to approve the
technology transfer contracts.
In cases where they disapprove a contract, they
shall, within the time limit mentioned in Clause 2 of this Article, have to
clearly reply in writing the applicants clearly stating the reason(s) therefor.
3. In cases where the contract-approving
agencies request the parties to supply additional documents or revise the
contents of their contracts to make them comply with the provisions of
Vietnamese laws, the parties shall be obliged to satisfy such requests within 60
days from the date of receipt of the written requests. If, past this time
limit, the above-mentioned requests are not satisfied, the applications for
contract approval shall be no longer valid.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
4. The procedures for approving additional
contracts shall be similar to the above-mentioned contract-approving
procedures. Within 20 days from the date of receipt of the dossiers which are
proper and in compliance with the Vietnamese laws, the approving agencies shall
have to evaluate and decide to approve the additional contracts. In cases where
they disapprove additional contracts, they shall have to reply the applicants
in writing clearly stating the reason(s) therefor.
5. The dossiers of application for contract
registration shall be sent to the Ministry of Science, Technology and
Environment if such dossiers are complete, the Ministry of Science, Technology
and Environment shall grant certificates of contract registration within seven
days from the date of receipt of the complete dossiers.
6. The dossiers of application for registration
of the transfer of the right to own and or use industrial property objects
shall be submitted to the Industrial Property Department in accordance with the
industrial property legislation.
Article 35.- The right
to consult specialists
During the process of approving contracts, the
ministries, ministerial-level agencies, agencies attached to the Government and
People's Committees of the provinces or cities directly under the Central
Government shall be entitled to consult the professional agencies and
specialists in the relevant domains. The consulted agencies and specialists
shall have to give honest and objective opinions and keep secret the relevant
information.
Article 36.- Complaints
about the contract approval
1. Within 90 days from the date the ministers,
the heads of the ministerial-level agencies or agencies attached to the
Government, or the presidents of the People's Committees of the provinces or
cities directly under the Central Government issue decisions to approve or
refuse to approve technology transfer contracts, the contracting parties or a
third party shall be entitled to lodge complains about the contents of the
decisions approving or disapproving their contracts to the ministers, the heads
of the ministerial-level agencies or agencies attached to the Government, or
the presidents of the people's Committees of the provinces or cities directly under
the Central Government.
2. Within 60 days from the date of receipt of
the written complaints, the ministers, the heads of the ministerial-level
agencies or agencies attached to the Government, or the presidents of the
People's Committees of the provinces or cities directly under the Central
Government shall have to notify the complainants of the settlement results.
3. In cases where they disagree with the results
of the settlement of their complaints by the ministers, the heads of the
ministerial-level agencies or agencies attached to the Government, or the
presidents of the People's Committees of the provinces or cities directly under
the Central Government, the parties shall be entitled to make complaints in
accordance with the legislation on complaints and settlement of complaints or
request the settlement according to the procedures for dealing with
administrative cases.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
The handling of technology transfer-related
administrative violations shall be stipulated by the Government in a separate
decree.
Chapter V
IMPLEMENTATION PROVISIONS
Article 38.-
Transitional provisions
1. Technology transfer contracts already
approved by the competent agencies before the effective date of this Decree
shall continue to be effective.
2. Technology transfer contracts which have not
yet been approved and if contain contents inconsistent with the Civil Code and
this Decree must be revised so as to comply with the Civil Code and this
Decree.
3. Technology transfer contracts stipulated in
Clause 1 of this Article must be registered with the Ministry of Science,
Technology and Environment within 60 days from the effective date of this
Decree.
Article 39.-
Implementation provisions
The heads of the ministries, ministerial-level
agencies, agencies attached to the Government and the presidents of the
People's Committees of the provinces or cities directly under the Central
Government shall have to implement this Decree.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
This Decree takes effect 15 (fifteen) days after
its signing. The previous provisions which are contrary to this Decree are
hereby annulled.
ON BEHALF OF THE
GOVERNMENT
PRIME MINISTER
Phan Van Khai