THE
GOVERNMENT
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|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
49/2009/ND-CP
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Hanoi,
May 21, 2009
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DECREE
PROVIDING FOR THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS
IN TECHNOLOGY TRANSFER
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the November 29, 2006 Law on Technology Transfer;
Pursuant to the July 2, 2002 Ordinance on Handling of Administrative Violations
and the April 2, 2008 Ordinance Amending and Supplementing a Number of Articles
of the Ordinance on Handling of Administrative Violations;
At the proposal of the Minister of Science and Technology,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.
Scope of regulation
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2. Administrative violations in
technology transfer prescribed in Chapter II of this Decree mean acts committed
by agencies, organizations or individuals (below collectively referred to as
organizations or individuals) intentionally or unintentionally violating the
law on state management of technology transfer, which are not crimes and are
subject to administrative sanctioning under law.
3. For technology
transfer-related administrative violations which are not mentioned in this
Decree, the Government's other regulations on the sanctioning of administrative
violations in relevant state management domains apply.
Article 2. Subjects
of application
1. Vietnamese organizations and
individuals, overseas Vietnamese and foreign organizations and individuals that
commit administrative violations in technology transfer within Vietnamese
territory shall be sanctioned under this Decree and other relevant laws.
2. While performing technology
transfer-related public duties, cadres, civil servants or public employees who
violate the law on technology transfer shall be handled under the law on cadres
and civil servants.
Article 3.
Forms of administrative sanctioning and remedies in technology transfer
1. For each administrative
violation in technology transfer, a violator is subject to any of the following
principal sanctions:
a/ Caution;
b/ Fine;
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2. Depending on the nature and
severity of violations, organizations or individuals committing administrative
violations in technology transfer may be subject to either or both of the
following additional sanctions:
a/ Deprivation of the right to
use technology transfer permits or technology-transfer contract registration
certificates;
b/ Confiscation of material
evidences or means used to commit administrative violations in technology
transfer.
3. Apart from the above
principal and additional sanctions, administrative violators in technology
transfer may be subject to one or several of the following remedies:
a/ Forcible application of
measures to tackle environmental pollution or spread of epidemics caused by
violations;
b/ Forcible transportation out
of Vietnamese territory or forcible export of products, equipment or
technologies related to violations:
c/ Forcible destruction of
products turned out with transferred technologies which harm human health or
the environment or cause adverse consequences to the culture;
d/ Other remedies specified in
Chapter II of this Decree.
Article 4.
Statute of limitations for sanctioning administrative violations
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2. The statute of limitations
for sanctioning administrative violations in domestically transferring
technologies is one year, counting from the date a violation is committed.
Chapter II
ACTS OF ADMINISTRATIVE
VIOLATION, SANCTIONING FORMS AND LEVELS
Article 5.
Acts of abusing technology transfer to prejudice defense interests, security or
lawful rights and interests of organizations or individuals
1. A fine of between VND
10,000,000 and 20,000,000 shall be imposed for acts of abusing technology
transfer to infringe upon lawful rights and interests of other organizations or
individuals.
2. A fine of between VND
50,000,000 and
70,000,000 shall be imposed for
acts of abusing technology transfer to prejudice defense interests or national
security.
3. Foreigners committing acts of
violation specified in Clause 2 of this Article shall be expelled.
4. Additional sanctions:
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b/ Deprivation for an indefinite
duration of the right to use technology transfer permits (if any) for acts of
violation specified in Clauses 1 and 2 of this Article.
5. Remedy:
Forcible re-export of imported
products or destruction of products turned out with transferred technologies,
for acts of violation specified in Clause 2 of this Article.
Article 6.
Acts of transferring technologies which adversely affect human health, morality
or fine customs and traditions of the nation
1. A fine of between VND
30,000,000 and 50,000,000 shall be imposed for any of the following acts:
a/ Transferring technologies for
turning out products which are immoral or unsuitable to the nation's traits or
fine customs and habits;
b/ Transferring technologies
which adversely affect human health;
c/ Transferring technologies for
turning out products banned from production under Vietnamese law.
2. Additional sanction:
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3. Remedies:
a/ Forcible destruction of
products turned out with transferred technologies specified in Clause 1 of this
Article;
b/ Forcible remedy of
health-related adverse consequences for people affected by acts specified at
Point b, Clause 1 of this Article.
Article 7.
Acts of transferring technologies on the list of those banned from transfer or
illegally transferring technologies on the list of those restricted from
transfer
1. A fine of between VND
30,000,000 and 50,000,000 shall be imposed for acts of transferring without
technology transfer permits technologies on the list of those restricted from
transfer.
2. A fine of between VND
50,000,000 and 70,000,000 shall be imposed for acts of transferring
technologies on the list of those banned from transfer.
3. Additional sanction:
Confiscation of material
evidences or means used to commit acts of violation specified in Clauses 1 and
2 of this Article.
4. Remedy:
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Article 8.
Acts of violating the technology transfer right regarding technology ownership
and use
1. A fine of between VND
3,000,000 and 5,000,000 shall be imposed for any of the following acts:
a/ Transferring technologies to
third parties while technology transfer contracts prohibit the transfer of
technologies to third parties;
b/ Transferring technologies
eligible for industrial property right protection without transferring
industrial property rights under the law on intellectual property.
2. A fine of between VND
5,000,000 and 10,000,000 shall be imposed for any of the following acts:
a/ Transferring technologies not
under transferors' ownership;
b/ Transferring technologies of
which use rights may not be transferred.
Article 9.
Acts of violation in making and performing technology transfer contracts or
technology transfer service contracts
1. A fine of between VND
5,000,000 and 10,000,000 shall be imposed for any of the following acts:
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b/ Failing to include technology
transfer details and expenses in a separate component of an investment project
involving technology transfer contents;
c/ Failing to include technology
transfer details and expenses in separate part of a commercial franchise
contract or machinery and equipment trading contract involving technology
transfer contents.
2. A fine of between VND
20,000,000 and 30,000,000 shall be imposed for any of the following acts:
a/ Committing fraudulent or
deceitful acts in making technology transfer contracts in order to be granted
technology-transfer contract registration certificates or technology transfer
permits;
b/ Continuing to perform
technology transfer contracts which must be suspended or cancelled under
decisions of competent state management agencies;
c/ Conducting activities
irrelevant to or outside those indicated in granted technology transfer
permits.
3. Additional sanctions:
a/ Deprivation for an indefinite
duration of the right to use technology-transfer contract registration
certificates or technology transfer permits for the acts specified at Point a,
Clause 2 of this Article;
b/ Deprivation of the right to
use technology transfer permits for between one and 3 months for the acts
specified at Point c, Clause 2 of this Article.
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Forcible inclusion of technology
transfer details and expenses in a separate component of an investment project
or of part of contract for the acts specified at Points b and c. Clause 1 of
this Article.
Article 10.
Acts of violation in providing technology transfer services
1. A fine of between VND
5,000,000 and 10,000,000 shall be imposed for acts of providing technology
transfer services not indicated in granted certificates of registration to
provide technology transfer services.
2. A fine of between VND
10,000,000 and 20,000,000 shall be imposed for acts of providing technology
transfer services without certificates of registration to provide technology
transfer services.
3. A fine of between VND
20,000,000 and 30,000,000 shall be imposed on technology transfer service
providers that commit fraudulent or deceitful acts in making or performing
technology transfer service contracts.
Article 11.
Acts of violating regulations on technology transfer reporting
1. Caution shall be served or a fine
of between VND 500,000 and 1,000,000 shall be imposed for any of the following
acts:
a/ Failing to submit reports on
the performance of technology transfer contracts or records assessing the
results of performance of technology transfer contracts with regard to
technologies on the list of those restricted from transfer to competent state
management agencies under regulations;
b/ Failing to report to science
and technology state management agencies in localities where technologies are transferred
on the organized introduction or transfer of agricultural, forestry and fishery
product aquaculture. preservation or processing technologies in rural or
mountainous areas or areas with difficult or exceptionally difficult
socio-economic conditions.
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3. Remedy:
Forcible submission of accurate
and adequate reports within the prescribed time limit, for the acts specified
at Point a. Clause 1 of this Article.
Article 12.
Acts of breaching the obligation to use and transfer outcomes of state-funded
technology research and development
1. Caution shall be served or a
fine of between VND 500,000 and 2,000,000 shall be imposed on organizations
that are assigned the ownership of technologies created with the state budget
that violate regulations on publicity of benefit-sharing mechanisms and ratios
under the law on technology transfer.
2. A fine of between VND
2,000,000 and 5,000,000 shall be imposed on organizations that are assigned by
the State the ownership of technologies created with the state budget but use
or transfer these technologies in contravention of regulations.
3. A fine of between VND
5,000,000 and 10,000,000 shall be imposed on organizations that are assigned by
the State the ownership of technologies created with the state budget but fail
to use or transfer technological research and development outcomes that are
required to be used or transferred under regulations of competent state
management agencies.
4. Remedies:
a/ Forcible publicization of
benefit-sharing mechanisms and ratios prescribed in the law on technology
transfer, for the acts of violation specified in Clause 1 of this Article;
b/ Forcible use or transfer of
technologies in accordance with regulations of competent state management
agencies, for the acts of violation specified in Clauses 2 and 3 of this
Article.
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1. A fine of between VND
3,000,000 and 5,000,000 shall be imposed for any of the following acts:
a/ Improperly using financial
supports from the National Technology Renewal Fund;
b/ Improperly or inadequately
performing commitments in order to enjoy incentives or supports from the
National Technology Renewal Fund.
2. A fine of between VND
5,000,000 and 7,000,000 shall be imposed for fraudulent or forgery acts in
order to enjoy supports or incentives under technology transfer promotion
policies.
3. Remedy:
Forcible refund of received
financial supports, for the acts of violation specified at Point a, Clause 1,
and Clause 2 of this Article.
Article 14.
Acts of obstructing persons who inspect, examine, and handle administrative
violations in technology transfer
1. Caution shall be served or a
fine of between VND 1,000,000 and 2,000,000 shall be imposed for any of the
following acts:
a/ Failing to produce or
insufficiently producing relevant documents, papers, data or vouchers at the
request of competent persons;
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2. A fine of between VND
3,000,000 and 5,000,000 shall be imposed for any of the following acts:
a/ Producing forged documents,
papers, data or vouchers to persons with inspection or examination competence;
b/ Dispersing material evidences
used in violations which are being subject to inspection or examination or
temporarily seized;
c/ Removing without permission
seals from material evidences used in violations which are sealed up or
temporarily seized;
d/ Shirking inspection or
examination or refusing to abide by inspection decisions in contravention of
regulations;
dd/ Failing to comply or
delaying compliance with requests, conclusions or decisions of science and
technology state management agencies or persons with inspection or examination
competence;
e/ Causing difficulties to
inspection or examination activities.
Chapter
III
COMPETENCE TO SANCTION
ADMINISTRATIVE VIOLATIONS
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1. Specialized science and
technology inspectors may:
a/ Serve caution;
b/ Impose fines of up to VND
500,000;
c/ Confiscate material evidences
or means valued at up to VND 2,000,000 used in administrative violations;
d/ Force the application of
remedies specified at Points a and c, Clause 3, Article 3 of this Decree.
2. Chief inspectors of
provincial-level Science and Technology Services may:
a/ Serve caution;
b/ Impose fines of up to VND
30,000,000;
c/ Deprive of the right to use
technology transfer permits or technology-transfer contract registration
certificates;
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dd/ Force the application of
remedies specified at Points a, c and d, Clause 3, Article 3 of this Decree.
3. The chief inspector of the
Ministry of Science and Technology may:
a/ Serve caution;
b/ Impose fines of up to VND
70,000,000;
c/ Deprive of the right to use
technology transfer permits or technology-transfer contract registration
certificates;
d/ Confiscate material evidences
or means used in administrative violations in technology transfer;
dd/ Force the application of
remedies specified at Points a, c and d, Clause 3, Article 3 of this Decree.
Article 16.
Competence of district-level and provincial-level People's Committee presidents
to sanction administrative violations
1. District-level People's
Committee presidents may:
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b/ Impose fines of up to VND
30,000,000:
c/ Confiscate material evidences
or means used in administrative violations in technology transfer;
d/ Force the application of
remedies specified at Points a, c and d, Clause 3, Article 3 of this Decree.
2. Provincial-level People's
Committee presidents may:
a/ Serve caution;
b/ Impose fines of up to VND
70,000,000;
c/ Deprive of the right to use
technology transfer permits or technology-transfer contract registration
certificates;
d/ Confiscate material evidences
or means used in administrative violations in technology transfer;
dd/ Force the application of
remedies specified in Clause 3, Article 3 of this Decree.
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The people's public security
force has the competence defined in Article 31 of the Ordinance on Handling of
Administrative Violations to sanction administrative violations in technology
transfer specified in Articles 5, 6 and 7 of this Decree.
Article 18.
Competence of customs and tax offices and other specialized inspectorates to
sanction administrative violations
1. Customs and tax offices have
the competence defined in Articles 34 and 36 of the Ordinance on Handling of
Administrative Violations to sanction administrative violations in technology
transfer directly related to areas under their management as specified in this
Decree.
2. Other specialized
inspectorates may sanction administrative violations in technology transfer
specified in Articles 5, 6 and 8, Clause 1, Article 9, Points a and c, Clause
2, Article 9, and Articles 12, 13 and 14, of this Decree.
Chapter IV
IMPLEMENTATION PROVISIONS
Article 19.
Effect
1. This Decree takes effect on
July 31, 2009.
2. This Decree replaces the
Government's Decree No. 16/2000/ND-CP of May 10, 2000, providing for the
sanctioning of administrative violations in the state management of technology
transfer.
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1. The Minister of Science and
Technology shall guide the implementation of this Decree.
2. Ministers, heads of
ministerial-level agencies, heads of government-attached agencies and
presidents of provincial-level People's Committees shall implement this Decree.
ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung