THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
16/2000/ND-CP
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Hanoi,
May 10, 2000
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DECREE
ON THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE FIELD
OF THE STATE MANAGEMENT OVER TECHNOLOGY TRANSFER
THE GOVERNMENT
Pursuant to the Law on Organization of the
Government of September 30, 1992;
Pursuant to Part VI, Chapter III of the Civil Code of October 28, 1995;
Pursuant to the Ordinance on the Handling of Administrative Violations of July
6, 1995;
Pursuant to the Government’s Decree No. 45/1998/ND-CP of July 1st, 1998
stipulating in detail the technology transfer;
At the proposal of the Minister of Science, Technology and Environment,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Scope and subjects of application
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2. Administrative violations of the regulations
in the field of the State management over technology transfer include:
a/ Violations of the State management
regulations on ownership in the field of technology transfer; violations of the
State management regulations on technology transfer in the field of culture,
national defense and security, social order and safety;
b/ Violations of the State management
regulations on: the content, form and time limit for performance of technology
transfer contracts stipulated in Article 4, Article 8 and Article 15 of Decree
No. 45/1998/ND-CP of July 1st, 1998 stipulating in detail the technology
transfer (hereinafter called Decree No. 45/1998/ND-CP for short);
c/ Violations of the State management
regulations on: reporting on the process of contract performance to the State
management agencies, the prescribed level of the contract payment prices, the
approval and registration of technology transfer contracts, and information
supply obligations stipulated in Article 22, Article 23, Article 31, Article
32, Article 33 and Article 34 of Decree No. 45/1998/ND-CP;
d/ Acts of obstructing the inspection and
supervision by the competent State management agencies;
e/ Violations of the State management
regulations on technology transfer consultancy service activities.
3. For technology transfer contracts not subject
to approval or registration as stipulated by Decree No. 45/1998/ND-CP, which,
however, the contracting parties voluntarily request the State management
agencies to approve or register, they shall also fall under the scope of
application of this Decree.
4. For the technology transfer terminology used
in this Decree, the provisions in Article 2 of Decree No. 45/1998/ND-CP shall
apply.
Article 2.- Principles for application of various forms of
administrative sanctions
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2. In cases where a violation is liable to a
pecuniary fine, the concrete level of such fine shall be the average level of
the fine bracket prescribed for the violation. If extenuating circumstances are
involved the fine may be reduced lower than the average level but not than the
minimum level of the fine bracket. If aggravating circumstances are involved,
the fine may be increased higher than the average level but not than the
maximum level of the fine bracket.
3. For extenuating and aggravating
circumstances, Article 7 and Article 8 of the Ordinance on the Handling of
Administrative Violations shall apply.
4. For individuals or organizations that are
sanctioned for administrative violations, one year after the date they
completed the implementation of sanctioning decisions or after the date the
sanctioning decisions ceased to be effective, if they do not relapse into such
violations, they shall be considered as having never been sanctioned for
administrative violations.
Article 3.- Forms of sanctions against administrative violations in technology
transfer
1. Principal sanctions:
a/ Warnings: applicable to minor, first-time
violations involving extenuating circumstances;
b/ Fines: applicable to violations which are
more serious in nature and extent than those liable to warning. The fine levels
shall be decided on the basis of the nature and seriousness of the violations
and within the prescribed fine bracket.
2. Additional sanctions:
a/ Stripping of the right to use licenses
related to technology transfer activities;
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3. Other measures to be applied:
a/ Forcible compensation for damage caused by
the administrative violations in technology transfer activities (for damage worth
up to 1,000,000 VND, the involved parties cannot reach agreement on the
compensation level, the persons competent to sanction shall decide the
compensation level). Damage worth over 1,000,000 VND shall be dealt with
according to the civil procedure legislation;
b/ Forcible implementation of measures to
overcome environmental pollution caused by administrative violations;
c/ Forcible destruction of products manufactured
with the transferred technologies, which are harmful to the people’s health and
the environment or cause adverse cultural consequences.
Article 4.- Statute of limitations of sanctions against administrative
violations
1. The statute of limitations of sanctions
against administrative violations in technology transfer shall be two years from
the date the administrative violations are committed in the transfer of
technologies from abroad into Vietnam and vice versa; It shall be one year for
domestic technology transfers. Past the above-mentioned statute of limitations,
no sanctions shall be imposed but any measures specified at Points b and c,
Clause 3, Article 3 of this Decree may be taken.
2. For individuals violating laws on technology
transfer activities against whom prosecution or lawsuit is initiated or
decisions are issued to bring their cases for trial according to the criminal
procedures, but afterwards decisions are issued to stop the investigation or
the case, they shall be subject to administrative sanctions if they violate the
provisions in this Decree; and the statute of limitations for such
administrative sanctions shall be three months from the date they receive the
stoppage decisions.
3. Within the time limits prescribed in Clause 1
and Clause 2 of this Article, if an organization or individual commits a new
administrative violation or deliberately eludes or obstructs the sanctioning,
the statute of limitations stated in Clause 1 and Clause 2 of this Article
shall not apply. Rather, it shall be counted from the time the new violation is
committed or the time the eluding or obstructing act is terminated.
Chapter II
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Article 5.- Violations of ownership in technology transfer
1. A fine of between 500,000 VND and 2,000,000
VND shall be imposed on the technology transferor in cases where the technology
transfer contract is not subject to approval but the technology transferor is
not the lawful owner of the technology or is not authorized by the lawful owner
to transfer the right to use the technology and causes damage to the technology
transferee.
2. Other measures to be applied: forcible
compensation for damage in case of violation of Clause 1 of this Article.
Article 6.- Acts of abusing decisions on approval of technology transfer
contracts; acts of violating the State management regulations on technology
transfer in the field of culture, national defense and security, social order
and safety
1. A fine of between 10,000,000 VND and
20,000,000 VND shall be imposed for acts of abusing decisions on approval of
technology transfer contracts to commit illegal acts.
2. A fine of between 15,000,000 VND to
30,000,000 VND shall be imposed for acts of performing technology transfer
contracts in the field of national defense and security without the competent
State body’s permission to transfer such technology(ies).
3. A fine of between 70,000,000 VND to
100,000,000 VND shall be imposed for acts of performing technology transfer
contracts not subject to approval but the transferred technology(ies) badly
affects and causes adverse consequences on culture, defense, national security,
social order and safety.
4. Additional sanctions and other measures:
a/ Stripping of the right to use licenses
related to the technology transfer contracts for up to six months for
violations stated in Clause 1 of this Article;
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Article 7.- Acts of violating the State management regulations on:
registration or approval of technology transfer contracts; performance of
invalidated contracts or contracts with a content banned in the field of
technology transfer
1. A fine of between 10,000,000 VND to
20,000,000 VND shall be imposed for one of the following acts:
a/ Performing technology transfer contracts subject
to registration without registering them; subject to approval without
submitting them to the competent authorities for approval;
b/ Failing to make additional registration or
apply for additional approval when amendments and/or supplements are made to
some contents of the contracts which are subject to registration or approval.
c/ Incorporating into technology transfer
contracts not subject to approval or registration those contents banned under
Article 13 of Decree No. 45/1998/ND-CP.
2. A fine of between 20,000,000 VND and
40,000,000 VND shall be imposed for acts of performing technology transfer
contracts with contents invalidated under Article 18 of Decree No.
45/1998/ND-CP.
3. Additional sanctions: Stripping of the right
to use licenses related to the technology transfer contracts for up to six
months, where violations stated at Point b, Clause 1; Clause 2 of this Article
are committed.
Article 8.- Acts of violating the regulations on reporting to the State
management agencies in the course of performance of technology transfer
contracts
A fine of between 1,000,000 VND and 3,000,000
VND shall be imposed for one of the following acts:
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b/ Failure to notify the agencies that have
approved the contracts as prescribed by law when the contracting parties
voluntarily cancel the approved technology transfer contracts.
Article 9.- Acts of violating the State management regulations on the
maximum duration for completion of technology transfer contracts and setting
the payment prices higher than the prescribed levels
1. A fine of between 2,000,000 VND and 5,000,000
VND shall be imposed for one of the following acts when technology transfer
contracts are performed without using the State capital:
a/ The duration for contract performance exceeds
the prescribed limits set in Article 15 of Decree No. 45/1998/ND-CP;
b/ Setting a payment price higher than the price
level prescribed in Article 23 of Decree No. 45/1998/ND-CP.
2. A fine of between 15,000,000 VND and 30,000,000
VND shall be imposed for one of the following acts when technology transfer
contracts are performed with the use of State capital:
a/ The duration for contract performance exceeds
the prescribed limits set in Article 15 of Decree No. 45/1998/ND-CP;
b/ Setting a payment price higher than the price
level prescribed in Article 23 of Decree No. 45/1998/ND-CP.
3. Additional sanctions: Confiscation into the
State fund the payment price amount in excess of the value prescribed at Point
b, Clause 2 of this Article.
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A fine of between 20,000,000 VND and 30,000,000
VND shall be imposed for acts of performing technology transfer contracts with
various contents without making a common contract therefor as prescribed in
Article 8 of Decree No. 45/1998/ND-CP but making separate contracts for every
content so as to avoid the State�s
control.
Article 11.-
Falsification and deception in dossiers of application
for approval or registration of technology transfer contracts
A fine of between 2,000,000 VND and 5,000,000
VND shall be imposed for falsification or deception in dossiers of application
for approval or registration of technology transfer contracts.
Article 12.-
Acts of obstructing, including refusal to supply
information, the inspection and supervision by the competent State management
agencies; violations of the regulations on technology transfer consultancy
service activities.
1. A warning shall be served or a fine of up to
500,000 VND shall be imposed on organizations or individuals that refuse to
supply information relating to technology transfer at the request of the
competent agencies.
2. A fine of between 1,000,000 VND and 3,000,000
VND shall be imposed on organizations or individuals that obstruct the
inspection or supervision by the competent State management agencies.
3. A fine of between 2,000,000 VND and 5,000,000
VND shall be imposed on organizations or individuals engaged in technology
transfer consultancy service activities when they commit one of the following
acts:
a/ Providing wrong consultancy or notification
of provisions of the legislation on technology transfer, thereby causing damage
to the State or the contracting parties;
b/ Deceiving or compelling the contracting
parties during the process of consultancy;
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4. Additional sanctions: Stripping of the right
to use the license for technology transfer consultancy service activities for
up to six months where the violation stated in Clause 3 of this Article is
committed.
Chapter III
COMPETENCE AND
PROCEDURES FOR SANCTIONING ADMINISTRATIVE VIOLATIONS
Article 13.-
The sanctioning competence of the specialized science
and technology Inspectorate
1. Specialized science and technology inspectors
under the Ministry of Science, Technology and Environment and the Science,
Technology and Environment Services of the provinces and centrally-run cities,
who are on duty, shall be entitled to:
a/ Serve warnings;
b/ Impose fines of up to 200,000 VND;
c/ Confiscate material evidences and/or means
used for the administrative violations, worth up to 500,000 VND;
d/ Compel the destruction of products created by
technology transfer activities, which cause harms to environment and people’s
health or bad consequences to culture.
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a/ Serve warnings;
b/ Impose fines of up to 10,000,000 VND;
c/ Confiscate material evidences and/or means
used for the administrative violations;
d/ Compel the compensation for damage worth up
to 1,000,000 VND caused by violations;
e/ Compel the destruction of products created by
technology transfer activities, which cause harms to environment and people’s
health or cause bad consequences to culture.
3. The specialized science and technology chief
inspectors under the the Ministry of Science, Technology and Environment shall
be entitled to:
a/ Serve warnings;
b/ Impose fines of up to 20,000,000 VND;
c/ Strip of the right to use licenses related to
technology transfer activities granted by the Ministry of Science, Technology
and Environment, the other ministries, the branches and the People’s Committees
of the provinces and centrally-run cities. The procedures for stripping of the
right to use such licenses shall comply with the provisions in Article 50 of
the Ordinance on the Handling of Administrative Violations;
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Article 14.-
The sanctioning competence of the People’s Committees of
the provinces and centrally-run cities
The presidents of the People’s Committees of the
provinces and centrally-run cities shall be entitled to:
a/ Serve warnings;
b/ Impose fines of up to 100,000,000 VND;
c/ Strip of the right to use licenses related to
technology transfer activities, granted by the provincial-level People’s
Committees.
For the licenses related to technology transfer
activities granted by the ministries, branches and higher-level State agencies,
the presidents of the People’s Committees shall be entitled to issue decisions
to stop the violations and request the competent State agencies to strip of the
right to use such licenses.
Article 15.-
The sanctioning competence of the customs, tax and
market control agencies
The customs, tax and market control agencies
shall impose sanctions against administrative violations related to technology
transfer according to their respective competence prescribed in Articles 30, 32
and 33 of the Ordinance on the Handling of Administrative Violations.
Article 16.-
Determination of competence to sanction administrative
violations in technology transfer
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2. In cases where an administrative violation in
technology transfer does not fall under the sanctioning competence of the
competent person who receives and is processing it, he/she must transfer the
dossier to the competent agency for decision.
3. When deeming that an administrative violation
in technology transfer shows signs of constitution of a crime, the competent
person who receives and is processing it must immediately transfer the dossier
to the same-level investigating agency for settlement.
It is strictly forbidden to keep technology
transfer cases showing signs of crime constitution for sanctioning them as
administrative violations.
Article 17.-
1. When detecting
administrative violations in technology transfer activities, the competent
persons specified in Articles 13, 14 and 15 of this Decree must issue decisions
to immediately stop such violations.
2. For administrative violations subject to
warnings or fines of up to 20,000 VND the persons competent to sanction them
must make minutes and issue sanctioning decisions on the spot and strictly
observe the provisions in Article 46 of the Ordinance on the Handling of
Administrative Violations.
3. For administrative violations subject to
fines of over 20,000 VND, the persons competent to sanction them must make minutes
on these administrative violations, issue sanctioning decisions and carry out
the fining procedures according to Articles 47, 48 and 49 of the Ordinance on
Handling of Administrative Violations.
4. The procedures for stripping of the right to
use licenses related to technology transfer, confiscating and dealing with
material evidences and/or means used for administrative violations in
technology transfer must comply with the provisions in Articles 50, 51 and 52
of the Ordinance on the Handling of Administrative Violations.
Article 18.-
Execution of sanctioning decisions
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2. Organizations and individuals that are
sanctioned for their administrative violations in the field of technology
transfer but deliberately refuse to abide by the sanctioning decisions shall be
coerced to do so and bear all costs arising from the coercive measures already
taken as prescribed in Article 55 of the Ordinance on the Handling of
Administrative Violations.
3. The sanctioned organizations shall have to
abide by the sanctioning decisions and at the same time determine the faults of
their personnel who have directly committed the administrative violations while
perfomring their official duties so as to discipline them according to the
liability examination and compel them to make compensation for damage, as
prescribed by law.
Chapter IV
SETTLEMENT OF
COMPLAINTS, DENUNCIATIONS AND HANDLING OF VIOLATIONS
Article 19.-
Complaints, denunciations and settlement thereof
1. Individuals and organizations sanctioned for
their administrative violations in technology transfer or their lawful
representatives shall be entitled to make complaints about sanctioning
decisions of the persons competent to sanction administrative violations.
2. Individuals shall be entitled to denounce to
competent agencies, organizations or individuals administrative violations
committed by any persons in technology transfer or denounce illegal acts
committed by persons competent to sanction administrative violations in
technology transfer.
The rights and obligations of the denouncers and
the competence to settle denunciations shall comply with the legislation on
complaints and denunciations.
The procedures for settlement of complaints and
denunciations shall comply with the legislation on complaints and
denunciations.
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Persons who have the competence to sanction
administrative violations in technology transfer but violate the regulations on
administrative sanctions, cause troubles, tolerate or cover up violators, fail
to sanction or sanction ultra vires, shall, depending on the nature and
seriousness of their violations, be disciplined or examined for penal
liability. In cases where they cause damage to agencies, organizations or
individuals, they must make compensation therefor as prescribed by law.
Chapter V
IMPLEMENTATION PROVISIONS
Article 21.-
This Decree takes effect 15 days after its signing.
Article 22.-
The Minister of Science, Technology and Environment
shall have to guide in detail and organize the implementation of this Decree.
Article 23.-
The ministers, the heads of the ministerial-level
agencies, the heads of the agencies attached to the Government and the
presidents of the People’s Committees of the provinces and centrally-run cities
shall have to implement this Decree.
ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai
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