THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence-Freedom-Happiness
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No.
127/2004/ND-CP
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Hanoi,
May 31, 2004
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DECREE
PRESCRIBING THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN
SCIENTIFIC AND TECHNOLOGICAL ACTIVITIES
THE GOVERNMENT
Pursuant to the Law on Organization of the
Government dated December 25, 2001;
Pursuant to the Law on Science and Technology dated June 9, 2000;
Pursuant to the Ordinance on Handling of Administrative Violations dated July
2, 2002;
At the proposal of the Minister of Science and Technology,
DECREES:
Chapter I
GENERAL PROVISIONS
Regulation scope
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2. The administrative violations in scientific
and technological activities, prescribed in Chapter II of this Decree mean acts
of individuals, agencies or organizations (hereinafter referred collectively to
as individuals and organizations), intentionally or unintentionally violating
law provisions on State management in scientific and technological activities,
which are not crimes but, according to law provisions, must be sanctioned for
administrative violations.
3. Acts of administrative violation in the
fields of measurement, product and goods quality, technology
Subjects of application
1. Vietnamese individuals and organizations that
commit acts of administrative violation in scientific and technological
activities shall be sanctioned according to the provisions of this Decree and
other relevant law provisions on sanctioning of administrative violations.
2. Foreign individuals and organizations that
commit acts of administrative violation within the territory, exclusive
economic zones and continental shelf of the Socialist Republic of Vietnam shall
be sanctioned according to the provisions of this Decree like Vietnamese
individuals and organizations.
Principles for sanctioning of administrative
violations
1. Individuals and organizations shall be
sanctioned for administrative violations in scientific and technological
activities when committing violations acts prescribed in Chapter II of this
Decree.
2. All administrative violations, when being
detected, must be stopped in time. The sanctioning of administrative violations
must be carried out in a swift, fair and resolute manner; all consequences
caused by administrative violations must be addressed according to law
provisions.
3. The sanctioning of administrative violations
in scientific and technological activities must be effected by the competent
persons defined in Article 21 of this Decree strictly according to law
provisions on sanctioning of administrative violations.
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5. The sanctioning of administrative violations
must be bases on the nature and seriousness of the violation, the personal
records of violators as well as extenuating and aggravating circumstances to
decide appropriate sanctioning forms and levels as well as handling measures
under the provisions of this Decree.
6. Sanctions shall not be imposed on
administrative violations committed in case of emergency, unexpected incidents
or administrative violations committed by individuals who are suffering from
mental or other diseases which deprive them of the capacity to cognize or
control their acts.
Extenuating, aggravating circumstances
1. The following circumstances are extenuating
ones:
a) Individuals and organizations committing
administrative violations have stopped or reduced the harms caused by the
violations or have voluntarily redressed the consequences and paid damages;
b) Individuals or organizations committing
administrative violations have voluntarily reported thereon and honestly
redeemed their faults;
c) Individuals commit administrative violations
in the state of being spiritually provoked by illegal acts of other persons;
d) Violations are committed as the result of
coercion or material and moral dependence;
e) Violating individuals are pregnant women,
weak elderly persons, persons suffering from ailments or disability which
deprive them of the capacity to cognize or control their acts;
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g) Violations are committed due to backwardness.
2. The following circumstances are aggravating
ones:
a) Committing violations in an organized manner;
b) Committing violations time and again in the
same domains or relapsing into violations in the same domains;
c) Inciting or dragging minors to commit violations,
coercing materially and spiritually dependent persons to commit violations;
d) Committing violations in the state of being
intoxicated by alcohol, beer or other stimulants;
e) Abusing one
f) Taking advantage of situation of war, natural
disaster or other particular difficulties of the society to commit violations;
g) Committing violations during the period of
serving the penalties of criminal judgments or serving decisions on handling of
administrative violations;
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i) After committing the violation, committing
acts of shirking, concealing administrative violations.
The statute of limitations for sanctioning and
the time limit for being considered not yet being sanctioned
1. The statute of limitations for sanctioning an
administrative violation in the scientific and technological activities is one
year as from the date the administrative violation is committed. The statute of
limitations is two years for violation acts related to financial matters in
scientific and technological activities. If past the above-mentioned time
limits, sanction shall not be imposed, but the remedial measures prescribed in
Clause 3, Article 6 of this Decree still apply.
2. Individuals, who have been subject to
lawsuits, prosecuted or had their law violation cases brought to trial, as
decided, according to criminal procedures, but later get decisions to suspend
investigation or suspend their cases while their violation acts show signs of
administrative violations, shall be administratively sanctioned; for this case,
the statute of limitations for sanctioning administrative violations is three
months as from the date the persons having sanctioning competence receive the
suspension decisions and violation case dossiers.
3. If within the time limits prescribed in
Clauses 1 and 2 of this Article, the violating individuals or organizations
again commit new acts of administrative violations in scientific and
technological activities or deliberately shirk or obstruct the sanctioning, the
statue of limitations prescribed in Clauses 1 and 2 of this Article shall not
apply. The statute of limitations for sanctioning of administrative violations
shall be recalculated from the time of committing the new administrative
violations or the time of terminating the acts of shirking or obstructing the
sanctioning.
4. Individuals and organizations sanctioned for
administrative violations in the scientific and technological activities, if
past one year counting from the date of completely serving the sanctioning
decisions or the date of expiry of the statue of limitation for execution of
sanctioning decisions they do not relapse into violations, shall be considered
as if they have not yet been sanctioned for administrative violations related
to science and technology.
Forms of sanctioning administrative violations
and remedial measures in scientific and technological activities
1. Principal sanctioning forms: For each
administrative violation in scientific and technological activities,
individuals and organizations must be subject to one of the following principle
sanctioning forms: caution or fine.
a) Caution: shall apply to petty, first-time
administrative violations which involve extenuating circumstances or to all
administrative violation acts committed by minors aged between full 14 and
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When imposing fines, the specific fine level for
an administrative violation act is the average level of the fine bracket
prescribed for such act in cases of unavailability of extenuating or
aggravating circumstances. The average level of the fine bracket is determined
by dividing the total of the minimum level and the maximum level by two.
For violations involving extenuating
circumstances, the fine levels may reduce but must not be lower than the
minimum level of the prescribed fine bracket.
For violations involving aggravating
circumstances, the fine levels may increase but must not exceed the maximum
level of the prescribed fine bracket.
2. Additional sanctioning forms: Depending on
the nature and seriousness of violations, individuals and organizations committing
administrative violations in scientific and technological activities may also
be subject to the application of one or all of the following additional
sanctioning forms:
a) Deprivation of the right to use certificates
of registration of scientific and technological activities;
3. Application of
remedial measures:
a) Forcible restoration of the initial state
already altered due to administrative violations;
b) Forcible application of measures to redress
the situation of environmental pollution or epidemics spread caused by
administrative violations;
c) Forcible destruction of scientific and
technological products being hazardous ones or causing harms to human health,
domestic animals and crops;
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e) Forcible public correction on central or
local mass media;
f) Forcible registration and submission of the
results of performance of scientific and technological tasks.
Chapter II
ACTS OF ADMINISTRATIVE VIOLATION,
SANCTIONING FORMS AND LEVELS
Acts of scientific and
technological activity against morality, national fine customs and traditions;
causing harms to natural resources, environment and human health, spreading
epidemics, causing harms to animals and plants; abusing scientific activities
to distort the line and policies of the Party, the laws of the State and
undermining the national unity bloc
1. Acts of scientific research activity against
morality, national fine traditions and customs
a) A fine of between VND 5,000,000 and
15,000,000 for acts of conducting scientific and technological research against
morality, national fine traditions and customs;
b) A fine of between VND 15,000,000 and
30,000,000 for cases where the violation acts prescribed at Point a, Clause 1
of this Article, cause bad consequences for the society.
2. A fine of between VND 50,000,000 and
70,000,000 for acts of scientific and technological activity causing harms to
natural resources, environment and human health, spreading epidemics, causing
harms to animals, plants.
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4. Additional sanctioning forms: Deprivation of
the right to use scientific and technological activity registration
certificates for between 12 months and 24 months for acts of administrative
violation prescribed in this Article.
5. Remedial measures:
a) Forcible application of measures to redress
the situation of environmental pollution, epidemics spread caused by
administrative violations, for administrative-violation acts prescribed in
Clause 2 of this Article;
b) Forcible destruction of scientific and
technological products being hazardous products or causing harms to human
health, domestic animals and crops, for administrative violation acts
prescribed in Clauses 1 and 2 of this Article.
Acts of appropriating results of scientific and
technological activities
1. A fine of between VND 10,000,000 and
20,000,000 for acts of appropriating results of scientific and technological
activities.
2. A fine of between VND 20,000,000 and
40,000,000 for cases where the violation acts prescribed in Clause 1 of this
Article cause bad moral and material consequences for other individuals and/or
organizations.
3. Additional sanctioning forms: Deprivation of
the right to use scientific and technological activity registration
certificates for between 12 months and 18 months, for violation acts prescribed
at Point 2 of this Article.
4. Remedial measures: Forcible public correction
on central or local mass media, for violation acts prescribed in Clauses 1 and
2 of this Article.
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1. A fine of between VND 5,000,000 and
15,000,000 for acts of transferring, assigning, supplying information on,
scientific and technological activities results created by individuals and/organizations,
which contravene the provisions of State management documents promulgated by
competent State bodies.
2. A fine of between VND 15,000,000 and
20,000,000 for administrative violation acts prescribed in Clause 1 of this
Article in cases where violation acts have yielded material profits.
3. Additional sanctioning form: Deprivation of
the right to use scientific and technological activity registration
certificates for between 12 months and 18 months, for violation acts prescribed
in Clause 1, and for up to 24 months, for violation acts prescribed in Clause 2
of this Article.
4. Remedial measures: Forcible restoration of
the initial state already altered due to administrative-violation acts
prescribed in Clauses 1 and 2 of this Article.
. Acts of deception,
falsification in scientific and technological activities
1. Caution for acts of deception, falsification
in order to be commended, tasked, recruited and while performing scientific and
technological tasks.
2. A fine of between VND 5,000,000 and 15,000,000
for acts of deception or falsification in order to enjoy policies of financial,
credit and land preferences and other prescribed preferences in scientific and
technological activities.
3. Remedial measures: Forcible return of funding
appropriated or used for wrong purposes, for administrative-violation acts
prescribed in Clauses 1 and 2 of this Article.
. Acts of violating
regulations on secrets in scientific and technological activities
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2. A fine of between VND 5,000,000 and
10,000,000 for acts of disclosing scientific and technological activity
materials and/or results classified as State secrets they know for self-seeking
purposes or not for self-seeking purposes but such acts cause material and
spiritual damage to individuals and/or organizations being owners of such
scientific and technological activity materials and results.
3. A fine of between VND 10,000,000 and
15,000,000 for acts of violating law provisions on publicizing, disseminating
and/or circulating inventions and utility solutions with contents classified as
State secrets, transferring abroad scientific and technological materials
and/or research samples with contents classified as State secrets.
. Acts of illegally
obstructing activities of State management over science and technology,
scientific research and technological development activities
1. Caution for acts of failing to present or
presenting inadequately materials, information and/or figures for the agencies
performing the State management over science and technology or competent
inspecting or examining persons.
2. A fine of between VND 500,000 and 2,000,000
for acts of presenting forged materials, information and/or figures to the
agencies performing the State management over science and technology or
competent inspecting or examining persons.
3. A fine of between VND 2,000,000 and 5,000,000
for acts of improperly refusing the implementation of inspection or
examination; obstructing the agencies performing the State management over
science and technology or competent persons from inspecting or examining the
observance of legislation on science and technology.
4. A fine of between VND 3,000,000 and 5,000,000
for acts of illegally obstructing science and technology Individuals or
organizations from conducing creative scientific and technological activities.
5. A fine of between VND 5,000,000 and
10,000,000 for acts of illegally obstructing science and technology individuals
or organizations from participating in recruitment for performance of
scientific and technological tasks, from exercising the rights prescribed in
Article 15 and 17 of the Law on Science and Technology.
. Acts of failing to
register, submit the results of performing State budget-financed science and
technology tasks
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2. Remedial measures: Forcible registration and
submission of results of performing science and technology tasks, for violation
acts prescribed in Clause 1 of this Article.
Acts of violating regulations on activities of
members of Science and Technology councils
1. Caution for acts of violating the principles
on activities of members of Advisory Councils: determining science and
technology tasks; recruiting individuals or organizations for performance of
science and technology tasks; evaluating and accepting the results of
performing the science and technology tasks.
2. A fine of between VND 500,000 and 2,000,000
for acts of violating the principles on activities of members of Advisory
Councils: determining science and technology tasks; recruiting individuals or
organizations for performance of science and technology tasks; evaluating and
accepting the results of performing the science and technology tasks, thus
harming the rights and interests of the State, individuals and/or organizations
engaged in scientific and technological activities.
. Acts of violating the
regulations on use and dissemination of results scientific and technological
activities
1. A fine of between VND 2,000,000 and 4,000,000
for acts of improperly using or using for wrong purposes the State-owned
results of scientific and technological activities.
2. A fine of between VND 2,000,000 and 5,000,000
for acts of popularizing, propagating or applying the scientific research and
technological development results created with State budget, which have not yet
been appraised by competent State management bodies but affected the national interests
and security, environment, health and life of people.
. Acts of violating the
regulations on registering and deploying activities of science and technology
organizations
1. Caution or a fine of between VND 500,000 and
2,000,000 for one of the following acts:
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b) Failing to make additional registration upon
changes of head-offices;
c) Failing to register representative offices or
branches while still putting up signboards and conducting operations.
2. A fine of between VND 2,000,000 and 5,000,000
for acts of forging papers, documents so as to be granted scientific and
technological activities registration certificates.
3. A fine of between VND 3,000,000 and 5,000,000
for acts of operating in contravention of the contents inscribed in the
scientific and technological activities registration certificates, leasing or
lending scientific and technological activities registration certificates.
4. A fine of between VND 5,000,000 and
10,000,000 on organizations which conduct scientific and technological
activities without scientific and technological activities registration
certificates or with expired scientific and technological activities
registration certificates.
5. Additional sanctioning forms: Deprivation of
the right to use scientific and technological activities registration
certificates for between 12 months and 18 months, for violation acts prescribed
in Clauses 1 and 3; deprivation of the right to use scientific and
technological activities registration certificates for an indefinite period of
time, for violation acts prescribed in Clause 2 of this Article.
Acts of violating regulations on scientific and
technological activities by social organizations, socio-professional
organizations
1. A fine of between VND 1,000,000 and 3,000,000
on social organizations, socio-professional organizations for conducting scientific
and technological activities in contravention of their approved charters or
according to charters not approved by competent bodies.
2. A fine of between VND 3,000,000 and 5,000,000
on social organizations, socio-professional organizations to conducting
scientific and technological activities without their organization and
operation charters.
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1. A fine of between VND 10,000,000 and
20,000,000 on individuals and organizations engaged in scientific and
technological activities for cooperation, joint venture or association with, or
reception of financial assistance from, domestic and/or foreign individuals and
organizations in contravention of law provisions.
2. Additional sanctioning forms: Deprivation of
the right to use scientific and technological activities registration
certificates for between 12 months and 24 months, for violation acts prescribed
in Clause 1 of this Article.
. Acts of violating
regulations on registration, management and use of the Science and
Technological Development Funds and the State budget reserved for scientific
and technological activities
1. Caution or a fine of between VND 200,000 and
1,000,000 for acts of setting up the Science and Technological Development
Funds without registering their operations.
2. A fine of between VND 1,000,000 and 3,000,000
for acts of managing and using the Science and Technological Development Funds
in contravention of the registered contents.
3. A fine of between VND 10,000,000 and
15,000,000 for acts of setting up the Science and Technological Development
Funds in contravention of the registered contents in order to gain illicit
profits.
4. A fine of between VND 15,000,000 and
20,000,000 for acts of appropriating, failing to reimburse on time without
plausible reasons the financial support funding from the State budget sources
or the Science and Technological Development Funds at various levels.
5. Additional sanctioning forms: Deprivation of
the right to use certificates of registration of operation of Science and
Technological Development Funds for between 12 months and 18 months, for the
violation acts prescribed in Clauses 2, 3 and 4 of this Article.
6. Remedial measures: Forcible return of the
funding appropriated or used for wrong purposes, for violation acts prescribed
in Clauses 3 and 4 of this Article.
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Caution or a fine of between VND 500,000 and
1,000,000 for violation acts prescribed in Article 55 of the Law on Science and
Technology on setting up and presenting science and technology awards
Chapter III
SANCTIONING COMPETENCE
AND PROCEDURES
. Sanctioning competence
1. The specialized science and technology
inspectors of the Ministry of Science and Technology, provincial/municipal
Services of Science and Technology, who are performing official duties, are
competent to apply the powers specified in Clause 1, Article 38 of the
Ordinance on Handling of Administrative Violations to the sanctioning of
administrative-violation acts prescribed in Chapter II of this Decree,
including:
a) Caution or a fine of up to VND 200,000;
b) Confiscation of material evidences, violation
means, which are valued at up to VND 2,000,000;
c) Application of remedial measures prescribed
at Points a, b and c, Clause 3, Article 6 of this Decree.
2. The specialized science and technology chief
inspectors of the provincial/municipal Services of Science and Technology are
competent to apply the powers specified in Clause 2, Article 38 of the
Ordinance on Handling of Administrative Violations to administrative-violation
acts prescribed in Chapter II of this Decree, including:
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b) Deprivation of the right to use scientific
and technological activities registration certificates granted by
provincial/municipal Services of Science and Technology;
c) Confiscation of material evidences and/or
means used for commission of administrative violations;
d) Application of remedial measures prescribed
at Points a, b and c, Clause 3, Article 6 of this Decree.
3. The specialized science and technology chief
inspector of the Ministry of Science and Technology is competent to apply the
powrs specified in Clause 3, Article 38 of the Ordinance on Handling of
Administrative Violations to administrative-violation acts prescribed in
Chapter II of this Decree, including:
a) Caution or a fine of up to VND 100,000,000;
b) Deprivation of the right to use scientific
and techonological activities registration certificates granted by Ministry of
Science and Technology or the provincial/municipal Services of Science and
Technology;
c) Confiscation of material evidences and/or
means used for commission of administrative violations;
d) Application of remedial measures prescribed
at Points a, b and c of Clause 3, Article 6 of this Decree.
4. The presidents of the Peoples Committees of
urban districts, rural districts, provincial capitals or towns are competent to
apply forms of sanctioning administrative violations prescribed in Article 29
of the Ordinance on Handling of Administrative Violations to the administrative
violations acts prescribed in Chapter II of this Decree, including:
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c) Application of
remedial measures prescribed at Points a, b and c, Clause 3, Aritcle 6 of this
Decree.
5. The presidents of provincial/municipal
Peoples Committees are competent to appy forms of administrative violations
prescribed in Article 30 of the Ordinance on Handling of Administrative
Violations to the administrative-violations acts prescribed in Chapter II of
this Decree and administratively sanction violation acts which fall under the
sanctioning competence of different branches, including:
a) Caution or a fine of up to VND 100,000,000;
b) Deprivation of the right to use scientific
and technological activities registration certificates granted by the
provincial/municipal Services of Science and Technology;
c) Confiscation of material evidences and/or
means used for commission of administrative violations;
d) Application of remedial measures prescribed
in Clause 3, Article 6 of this Decree.
Principles on determining the competence to
sanction administrative violations in scientific and technological activities
1. The presidents of the Peoples Committees of
the provinces or centrally-run cities, the presidents of the Peoples Committees
of urban districts, rural districts, provincial capitals or towns are competent
to sanction administrative violations in scientific and technological
activities in their respective localities.
2. The specialized science and technology chief
inspectors and inspectors of the Ministry of Science and Technology or the
provincial/municipal Services of Science and Technology are competent to
sanction administrative violations in scientific and technological activities
falling under the scope of management by the bosses of the same level.
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3. Where an individual or organization
simultaneously commits many administrative-violations acts, including
violations related to scientific and technological activities, the sanctioning
competence shall be determined according to the principles prescribed in Clause
3, Article 42 of the Ordinance on Handling of Administrative Violations.
4. Where acts of administrative-violations in
scientific and technological activities show criminals signs, the competent
persons prescribed in Clauses 1 and 2 of this Article must immediately transfer
the dossiers thereon to the criminal procedure-performing agencies of the same
level for settlement.
It is strictly forbidden to apply the
administrative sanction to acts with criminal signs in scientific and
technological activities.
. Sanctioning procedures
1. The record making and the decision to
sanction must comply with the procedures prescribed in Article 54, 55 and 56 of
the Ordinance on Handling of Administrative Violations.
2. The fining and fine payment must comply with
the procedures prescribed in Article 57 and 58 of the Ordinance on Handling of
Administrative Violations.
3. The procedures for deprivation of the right
to use scientific and technological activities registration certificates shall
comply with the provisions in Article 9 of the Ordinance on Handling of
Administrative Violations.
4. The procedures for confiscation and handling
of material evidences and means of administrative violations in scientific and
technological activities shall comply with Articles 60 and 61 of the Ordinance
on Handling of Administrative Violations.
Execution of sanctioning decisions
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2. Individuals and organizations sanctioned for
administrative violations in scientific and technological activities, who fail
to voluntarily execute the sanctioning decisions, shall be coerced to execute
them. Individuals and organizations coerced to execute the decisions shall have
to bear all expenses for organizing the application of coercive measures. The
procedures for coercive execution shall comply with the provisions in Articles
66 and 67 of the Ordinance on Handling of Administrative Violations.
Chapter IV
COMPLAINTS,
DENUNCIATIONS AND HANDLING OF VIOLATIONS
. Complaints, denunciations
and the settlement thereof
1. Individuals and organizations or their lawful
representatives are entitled to complain about the sanctioning decisions of
competent persons defined in Article 21 of this Decree. The procedures for complaints
and settlement thereof shall comply with the provisions in Article 118 of
Ordinance on Handling of Administrative Violations. The competence and time
limit for lodging complaints and settlement of complaints shall comply with the
provisions of the Law on Complaints and Denunciations. The complaint about
decisions on sanctioning of administrative violations shall not stop the
execution of the decisions on sanctioning of administrative violations in
scientific and technological activities.
2. Individuals are entitled to denounce to
competent State bodies administrative violations in scientific and
technological activities, committed by other individuals or organizations;
denounce acts of law violation in the handling of administrative violations in scientific
and technological activities, committed by persons with sanctioning competence.
The competence, time limit and procedures for settlement of denunciations shall
comply with the provisions of the Law on Complaints and Denunciations.
. Handling of persons who
are competent to sanction administrative violations related to science and
technology.
Persons competent to sanction administrative
violations in scientific and technological activities who violate the
regulations on administrative sanctions shall be handled according to Article
121 of the Ordinance on Handling of Administrative Violations.
. Handling of violations
committed by persons sanctioned for violations in scientific and technological
activities
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IMPLEMENTATION PROVISIONS
This Decree takes effect 15 days
after its publication in the Official Gazette.
. The Minister of Science
and Technology has the responsibility to detail and organize the implementation
of this Decree.
The ministers, the heads of the
ministerial-level agencies, the heads of the Government-attached agencies and
the presidents of the provincial/municipal Peoples Committees shall have to
implement this Decree.
ON BEHALF OF
THE GOVERNMENT
PRIME MINISTER
Pham Van Khai