THE
GOVERNMENT
--------
|
SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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|
No. 08/2013/ND-CP
|
Hanoi, January
10th 2013
|
DECREE
ON THE ADMINISTRATIVE PENALTIES FOR PRODUCING AND TRADING
COUNTERFEIT GOODS
Pursuant to the Law on Government
organization dated December 25th 2001;
Pursuant to the Criminal Code dated December
21st 1999 and the Law on amending and supplementing a number of
articles of the Criminal Code dated June 29th 2009;
Pursuant to the Law on
Commerce dated June 14th 2005;
Pursuant to the Law on
Intellectual property dated November 29th 2005
and the Law on amending and supplementing a number of articles of the
Law on Intellectual property dated June 19th
2009;
Pursuant to the
Ordinance on Handling administrative violations dated June 02nd 2002
and the Ordinance on amending and supplementing a number of articles of the
Ordinance on Handling administrative violations dated April 02nd
2008;
At the proposal of the Minister of Industry
and Trade;
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Chapter 1.
GENERAL PROVISIONS
Article 1. Scope of
regulation
1. This Decree deals with the acts of
administrative violations, the forms and rates of penalties, and the remedial
measures applicable to the administrative violations, the procedures and
authority to impose administrative penalties for acts of producing and trading
counterfeit goods.
2. The goods within the scope of regulation of
this Decree are the goods prescribed in Clause 2 Article 3 of the Law on
Commerce 2005.
Article 2. Subjects of
application
1. The Vietnamese organizations and individuals
that produce and trade counterfeit goods within Vietnam’s territory.
2. The foreign organizations and individuals
that produce and trade counterfeit goods within the Vietnam’s territory, unless
otherwise prescribed by the International Agreements to which Vietnam is a
signatory.
Article 3. Interpretation of
terms
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1. “Producing counterfeit goods are doing one,
some, or all the activities including manufacturing, publishing, printing,
processing, ordering, preparing, processing, treating, extracting, recycling,
assembling, mixing, dividing, filling, packing, and other activities to make
counterfeit goods and put them into circulation.
2. “Trading counterfeit goods" are doing
on, some, or all the activities including offering, displaying, introducing,
advertising, promoting, storing, preserving, transporting, trading, exporting,
importing, and other activities to put the counterfeit goods into circulation.
3. “Counterfeit stamps, labels, and packages”
includes decals, goods labels, goods packages, quality stamps, warranty notes,
goods seals, or other items of traders that contain fraudulent information
specified in Clause 2 Article 4 of this Decree.
4. “Exhibits":
a) Finished or semi-finished counterfeit goods
that have or have not put into circulation.
b) Materials, accessories, components, parts, additives,
processing supplements, other raw materials, counterfeit stamps, labels, and
packages used for producing counterfeit goods
5. “instruments for committing violations”
include vehicles, tools, machinery, and other items used for producing and trading
counterfeit goods.
Article 4. Types of
counterfeit goods
1. The useless goods;
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b) The goods of which the amount of primary
substances, nutrients, or other technical properties only reaches 70% or lower
compared to the quality standards and technical regulations that have been
registered, announced, or written on their labels or packages;
c) The medicines for humans and domestic animals
that have no pharmaceutical substances, or the amount of pharmaceutical
substances is not consistent with the registered one; or do not contain all the
registered pharmaceutical substances, or contain other pharmaceutical
substances than that written on their labels or packages.
b) The plant protection drugs that do not
contain active ingredients, or the amount of active ingredient only reaches 70%
or lower compared to the quality standards and technical regulations that have
been registered or announced, or does not contain all the registered
active ingredients, or contain other active ingredients than that written on
their labels and packages.
2. Goods using counterfeit labels and packages:
a) Goods using labels and packages that
illegally assume the names and addresses of other traders; illegally assume the
trademarks and brand names, the circulation registration codes, bar codes, or
packages of other traders;
b) The goods of which the labels or packages
contain fraudulent information about the origins, the places where goods are
produced, packaged, and assembled.
3. The goods with fake intellectual property as
prescribed in Article 213 of the Law on Intellectual property 2005.
4. Counterfeit stamps, labels, and packages.
Article 5. The application
of forms of administrative penalties and remedial measures
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a) For trading counterfeit goods: From 100,000
VND to 70,000,000 VND;
b) For producing counterfeit goods: From 200,000
VND to 100,000,000 VND.
2. The confiscation of exhibits and instruments
for committing violations prescribed in this Decree shall be applied in the
following cases:
a) The exhibits prescribed in Point b Clause 4
Article 3 of this Decree;
b) The exhibits being the counterfeit goods of
which the destruction would affect the environment, humans, animals, plants,
social safety and order.
c) The exhibits being counterfeit goods of which
the illegal elements on their labels or packaged is not removable, or the
removal of the illegal elements might lead to further violations.
d) The export or re-export of exhibits from
Vietnam is not impossible;
dd) The confiscation of instruments for
committing violations shall be applied to the instruments used for directly
producing and trading counterfeit goods, excluding the instruments for
committing violations prescribed in Clause 2 Article 17 of the Ordinance on
Handling administrative violations 2002, amended and supplemented in the
Ordinance on amending and supplementing a number of articles of the Ordinance
on Handling administrative violations 2008 (hereinafter referred to as the
Ordinance), and Clause 2 Article 12 of the Government's Decree No.
128/2008/ND-CP dated December 16th 2008, detailing the
implementation of a number of articles of the Ordinance (hereinafter referred
to as the Decree No. 128/2008/ND-CP).
3. The temporary or indefinite revocation of the
practice certificates or licenses in this Circular shall be applied as follows:
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b) The temporary or indefinite revocation of the
practice certificates or licenses in this Circular is specified in Article 16
of the Ordinance and Article 11 of the Decree No. 128/2008/ND-CP.
4. The remedial measures prescribed in this
Decree shall be applied as follows:
a) Compelling the violating organizations and
individuals to destroy the counterfeit goods as long as the destruction of such
counterfeit goods does not affect the environment, humans, animals, plants,
social safety and order;
c) Compelling the violating organizations and
individuals to remove the illegal elements from their labels or packaged as
long as the removal of the illegal elements does not lead to further violations.
c) Compelling the export or re-export of the
imported counterfeit goods from Vietnam, as long as the violating organizations
and individuals are able to take this measures.
d) Compelling the violating organizations and
individuals to transfer the money illegally collected to the State budget,
including the money collected from the production and trade of counterfeit
goods;
dd) Compelling the destruction or removal of the
illegal elements from the goods that have been sold and put into circulation by
the violating organizations and individuals.
5. When applying the remedial measures
prescribed in Clause 4 of this Article, the persons competent to impose
penalties shall impose a reasonable deadline for the violating organizations
and individuals to implement. If the measures are not implemented after the
deadline written in the penalty decision, the implementation shall be enforced,
or the decision on confiscation shall be made to handle the case as prescribed.
Article 6. The application
of laws on imposing administrative penalties
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2. The penalty principle, the cases exempted
from penalties; the mitigating and aggravating circumstances, the statute of
limitations and limits for imposing penalties; the period considered without
charge; the method of calculation of statute of limitations and time limit, the
application of forms of penalties for administrative violations and remedial
measures; the responsibility of person competent to impose administrative
penalties for producing and trading counterfeit goods are specified in the
Ordinance and the Decree No. 128/2008/ND-CP.
Article 7. Converting the
documents of violations showing signs of crimes for criminal prosecution or
vice versa
1. The documents about production and trade of
counterfeit goods showing signs of crimes as prescribed by the Criminal Code
1999 and the Law on amending and supplementing a number of articles of the
Criminal code 2009 shall be sent to criminal proceedings agencies for
considering the criminal prosecution as prescribed in Article 62 of the
Ordinance.
2. If the liable to criminal prosecution is
cancelled, and the documents about the production and trade of counterfeit
goods are converted for administrative penalties as prescribed in Article 63 of
the Ordinance, the administrative penalties shall be imposed as prescribed in
this Decree.
Chapter 2.
ACTS OF ADMINISTRATIVE
VIOLATIONS , FORMS AND RATES OF PENALTIES
Article 8. Penalties for
trading counterfeit useless goods;
1. The fines for trading counterfeit useless
goods prescribed in Clause 1 Article 4 of this Decree:
a) Fines of from 500,000 VND to 1,000,000 VND
when the value of an equivalent quantity of genuine goods reaches up to
1,000,000 VND;
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c) Fines of from 3,000,000 VND to 5,000,000 VND
when the value of an equivalent quantity of genuine goods reaches from over
3,000,000 VND to 5,000,000 VND;
d) Fines of from 5,000,000 VND to 10,000,000 VND
when the value of an equivalent quantity of genuine goods reaches from over
5,000,000 VND to 10,000,000 VND;
dd) Fines of from 10,000,000 VND to 20,000,000 VND when the value of
an equivalent quantity of genuine goods reaches from over 10,000,000 VND to 20,000,000 VND;
e) Fines of from 20,000,000 VND to 30,000,000
VND when the value of an equivalent quantity of genuine goods reaches from over
20,000,000 VND to under 30,000,000 VND;
g) Fines of from 30,000,000 VND to 50,000,000 VND when the value of an
equivalent quantity of genuine goods exceeds 30,000,000
VND and do not constitute a criminal offence.
2. The fines in Clause 1 of
this Article shall be doubled, but do not exceed 70,000,000 VND, in one of the following cases:
a) The counterfeit goods are foods, medicines,
animal feed, fertilizers, veterinary medicines, pesticide, breeds of plants and
animals, that do not constitute a criminal offence;
b) The counterfeit goods are food additives,
cosmetics, medical equipment, cement, building steel, and helmets;
c) The counterfeit goods are imported, or the
trader of counterfeit goods are the person that directly import such
counterfeit goods.
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a) Confiscating the exhibits and instruments for
committing violations, applicable to the violations prescribed in this Article;
b) Temporarily or indefinitely revoke the
practice certificate or license, applicable to the recommitment of the
violations prescribed in this Article, and to the trade of counterfeit goods
prescribed in Points a and b Clause 2 of this Article.
c) Temporarily or indefinitely revoking the
practice certificate or license, applicable to the recommitment of the trade of
counterfeit goods prescribed in Points a and b Clause 2 this Article.
4. Remedial measures:
a) Compelling the destruction of counterfeit
goods, applicable to the violations prescribed in this Article;
b) Compelling the export or re-export of
counterfeit goods from Vietnam, applicable to the import of counterfeit goods
prescribed in this Article;
c) Compelling the transfer of money collected
from trading counterfeit goods to the State budget, applicable to the
violations prescribed in this Article;
d) Compelling the recall and destruction of sold
counterfeit goods that are in circulation, applicable to the violations
prescribed in this Article;
Article 9. Penalties
for producing counterfeit useless goods;
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a) Fines of from 3,000,000 VND to 7,000,000 VND
when the value of an equivalent quantity of genuine goods reaches up to
3,000,000 VND;
b) Fines of from 7,000,000 VND to 10,000,000 VND
when the value of an equivalent quantity of genuine goods reaches from over
3,000,000 VND to 5,000,000 VND;
c) Fines of from 10,000,000 VND to 20,000,000
VND when the value of an equivalent quantity of genuine goods reaches from over
5,000,000 VND to 10,000,000 VND;
d) Fines of from 20,000,000 VND to 30,000,000
VND when the value of an equivalent quantity of genuine goods reaches from over
10,000,000 VND to 20,000,000 VND;
dd) Fines of from 30,000,000 VND to 40,000,000 VND when the value of
an equivalent quantity of genuine goods reaches from over 20,000,000 VND to under 30,000,000 VND;
e) Fines of from 40,000,000 VND to 60,000,000
VND when the value of an equivalent quantity of genuine goods exceeds
30,000,000 VND and do not constitute a criminal offence.
2. The fines in Clause 1 of this
Article shall be doubled, but do not exceed 70,000,000 VND, in one of the
following cases:
a) The counterfeit goods are foods, medicines,
animal feed, fertilizers, veterinary medicines, pesticide, breeds of plants and
animals, that do not constitute a criminal offence;
b) The counterfeit goods are food additives,
cosmetics, medical equipment, cement, building steel, and helmets.
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a) Confiscating the exhibits and instruments for
committing violations, applicable to the violations prescribed in this Article;
b) Temporarily revoking the practice certificate
or license, applicable to the recommitment of the violations prescribed in this
Article;
c) Indefinitely revoking the practice
certificate or license, applicable to the production of counterfeit goods
prescribed in Clause 2 of this Article.
4. Remedial measures:
a) Compelling the destruction of counterfeit
goods, applicable to the violations prescribed in this Article;
b) Compelling the transfer of money collected
from the production of counterfeit goods to the State budget, applicable to the
violations prescribed in this Article;
c) Compelling the recall and destruction of the
sold goods in circulation, applicable to the violations prescribed in this
Article.
Article 10. Penalties for
trading goods using counterfeit labels and packages
1. The fines for trading goods using
counterfeit labels and packages prescribed in Clause 2 Article 4
of this Decree:
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b) Fines of from 500,000 VND to 2,000,000 VND
when the value of an equivalent quantity of genuine goods reaches from over
1,000,000 VND to 3,000,000 VND;
c) Fines of from 2,000,000 VND to 3,000,000 VND
when the value of an equivalent quantity of genuine goods reaches from over
3,000,000 VND to 5,000,000 VND;
d) Fines of from 3,000,000 VND to 5,000,000 VND
when the value of an equivalent quantity of genuine goods reaches from over
5,000,000 VND to 10,000,000 VND;
dd) Fines of from 5,000,000 VND to 10,000,000 VND when the value of
an equivalent quantity of genuine goods reaches from over 10,000,000 VND to
20,000,000 VND;
e) Fines of from 10,000,000 VND to 20,000,000
VND when the value of an equivalent quantity of genuine goods reaches from over
20,000,000 VND to under 30,000,000 VND;
g) Fines of from 20,000,000 VND to 30,000,000
VND when the value of an equivalent quantity of genuine goods exceeds
30,000,000 VND and do not constitute a criminal offence.
2. The fines prescribed in Clause
1 of this Article shall be doubled in one of the following cases:
a) The counterfeit goods are foods, medicines,
animal feed, fertilizers, veterinary medicines, pesticide, breeds of plants and
animals, that do not constitute a criminal offence;
b) The counterfeit goods are food additives,
cosmetics, medical equipment, cement, building steel, helmet;
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3. Forms of additional penalties:
a) Confiscating the exhibits and instruments for
committing violations, applicable to the violations prescribed in this Article;
b) Temporarily revoking the practice certificate
or license, applicable to the recommitment of the violations prescribed in this
Article, and to the trade of counterfeit goods prescribed in Point a and b
Clause 2 of this Article.
c) Indefinitely revoke the practice certificate
or license, applicable to the recommitment of the trade of counterfeit goods
prescribed in Points a and b Clause 2 this Article.
4. Remedial measures:
a) Compelling the removal of the illegal
elements from the labels and packages of counterfeit goods, applicable to the
violations prescribed in this Article;
b) Compelling the export or re-export of
counterfeit goods from Vietnam, applicable to the import of counterfeit goods
prescribed in this Article;
c) Compelling the transfer of money collected
from trading counterfeit goods to the State budget, applicable to the
violations prescribed in this Article;
d) Compelling the removal of illegal elements
from the sold goods in circulation, applicable to the violations prescribed in
this Article.
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1. The fines for producing goods using counterfeit labels and packages prescribed in Clause 2
Article 4 of this Decree:
a) Fines of from 2,000,000 VND to 5,000,000 VND
when the value of an equivalent quantity of genuine goods reaches up to
3,000,000 VND;
b) Fines of from 5,000,000 VND to 8,000,000 VND
when the value of an equivalent quantity of genuine goods reaches from over
3,000,000 VND to 5,000,000 VND;
c) Fines of from 8,000,000 VND to 15,000,000 VND
when the value of an equivalent quantity of genuine goods reaches from over
5,000,000 VND to 10,000,000 VND;
d) Fines of from 15,000,000 VND to 25,000,000
VND when the value of an equivalent quantity of genuine goods reaches from over
10,000,000 VND to 20,000,000 VND;
dd) Fines of from 25,000,000 VND to 35,000,000 VND when the value of
an equivalent quantity of genuine goods reaches from over 20,000,000 VND to
under 30,000,000 VND;
e) Fines of from 35,000,000 VND to 45,000,000
VND when the value of an equivalent quantity of genuine goods exceeds
30,000,000 VND and do not constitute a criminal offence.
2. The fines prescribed in Clause 1 of this
Article shall be doubled in one of the following cases:
a) The counterfeit goods are foods, medicines,
animal feed, fertilizers, veterinary medicines, pesticide, breeds of plants and
animals, that do not constitute a criminal offence;
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3. Forms of additional penalties:
a) Confiscating the exhibits and instruments for
committing violations, applicable to the violations prescribed in this Article;
b) Temporarily revoking the practice certificate
or license, applicable to the recommitment of the violations prescribed in this
Article;
c) Indefinitely revoking the practice
certificate or license, applicable to the production of counterfeit goods
prescribed in Clause 2 of this Article.
4. Remedial measures:
a) Compelling the removal of the illegal
elements from the labels and packages of counterfeit goods, applicable to the
violations prescribed in this Article;
b) Compelling the transfer of money collected
from the production of counterfeit goods to the State budget, applicable to the
violations prescribed in this Article;
c) Compelling the removal of illegal elements
from the sold goods in circulation, applicable to the violations prescribed in
this Article.
Article 12.
Penalties for trading counterfeit stamps, labels, and packages
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a) Fines of from 100,000 VND to 200,000 VND when
the quantity of counterfeit stamps, labels, and packages reaches 100 units;
b) Fines of from 200,000 VND to 500,000 VND when
the quantity of counterfeit stamps, labels, and packages reaches from over 100
units to 500 units
c) Fines of from 500,000 VND to 1,000,000 VND
when the quantity of counterfeit stamps, labels, and packages reaches from over
500 units to 1,000 units;
d) Fines of from 1,000,000 VND to 2,000,000 VND
when the quantity of counterfeit stamps, labels, and packages reaches from over
1,000 units to 2,000 units;
dd) Fines of from 2,000,000 VND to 5,000,000 VND when the quantity of
counterfeit stamps, labels, and packages reaches from over 2,000 units to 3,000 units;
e) Fines of from 5,000,000 VND to 10,000,000 VND
when the quantity of counterfeit stamps, labels, and packages reaches from over
3,000 units to 5,000 units;
g) Fines of from 10,000,000 VND to 15,000,000
VND when the quantity of counterfeit stamps, labels, and packages reaches from
over 5,000 units to 10,000 units;
g) Fines of from 15,000,000 VND to 20,000,000
VND when the quantity of counterfeit stamps, labels, and packages exceeds
10,000 units.
2. The fines prescribed in Clause
1 of this Article shall be doubled in one of the following cases:
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c) The counterfeit stamps, labels, and packages
are imported, or the trader of counterfeit goods are the person that directly
import such counterfeit stamps, labels, and packages.
3. Forms of additional penalties:
a) Confiscating the exhibits and instruments for
committing violations, applicable to the violations prescribed in this Article;
b) Temporarily revoking the practice certificate
or license, applicable to the recommitment of the violations prescribed in this
Article, and to the trade of counterfeit stamps, labels, and packages
prescribed in Point a Clause 2 of this Article;
c) Indefinitely revoking the practice
certificate or license, applicable to the recommitment of the trade of
counterfeit stamps, labels, and packages prescribed in Point a Clause 2 of this
Article.
4. Remedial measures:
a) Compelling the destruction of the counterfeit
stamps, labels, and packages, applicable to the violations prescribed in this
Article;
b) Compelling the transfer of the money
collected from the trade of counterfeit stamps, labels, and packages to the
State budget, applicable to the violations prescribed in this Article;
c) Compelling the recall and destruction of the
counterfeit stamps, labels, and packages in circulation, applicable to the
violations prescribed in this Article.
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1. The fines for producing counterfeit stamps, labels, and packages prescribed in Clause 4
Article 4 of this Decree:
a) Fines of from 200,000 VND to 500,000 VND when
the quantity of counterfeit stamps, labels, and packages reaches up to 100
units;
b) Fines of from 500,000 VND to 100,000 VND when
the quantity of counterfeit stamps, labels, and packages reaches from over 100
units to 500 units;
c) Fines of from 1,000,000 VND to 2,000,000 VND
when the quantity of counterfeit stamps, labels, and packages reaches from over
500 units to 1,000 units;
d) Fines of from 2,000,000 VND to 5,000,000 VND
when the quantity of counterfeit stamps, labels, and packages reaches from over
1,000 units to 2,000 units;
dd) Fines of from 5,000,000 VND to 10,000,000 VND when the quantity
of counterfeit stamps, labels, and packages reaches from over 2,000 units to
3,000 units;
e) Fines of from 10,000,000 VND to 15,000,000
VND when the quantity of counterfeit stamps, labels, and packages reaches from
over 3,000 units to 5,000 units;
g) Fines of from 15,000,000 VND to 20,000,000
VND when the quantity of counterfeit stamps, labels, and packages reaches from
over 5,000 units to 10,000 units;
g) Fines of from 20,000,000 VND to 30,000,000
VND when the quantity of counterfeit stamps, labels, and packages exceeds
10,000 units.
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3. Forms of additional penalties:
a) Confiscating the exhibits and instruments for
committing violations, applicable to the violations prescribed in this Article;
b) Temporarily revoking the practice certificate
or license, applicable to the recommitment of the violations prescribed in this
Article, and to the production of the counterfeit stamps, labels, and packages
prescribed in Clause 2 of this Article;
c) Indefinitely revoking the practice
certificate or license, applicable to the recommitment of the production of the
counterfeit stamps, labels, and packages prescribed in Point a Clause 2 of this
Article.
4. Remedial measures:
a) Compelling the destruction of the counterfeit
stamps, labels, and packages, applicable to the violations prescribed in this
Article;
b) Compelling the transfer of the money
collected from the production of counterfeit stamps, labels, and packages to
the State budget, applicable to the violations prescribed in this Article;
c) Compelling the recall and destruction of the
counterfeit stamps, labels, and packages in circulation, applicable to the
violations prescribed in this Article.
Article 14.
Penalties for producing and trading goods with
counterfeit intellectual property
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Chapter 3.
PROCEDURE AND AUTHORITY
TO IMPOSE ADMINISTRATIVE PENALTIES
Article 15. The procedure
for imposing penalties
1. The procedure and time limit for imposing
penalties, the procedure for converting documents of violations showing signs
of crimes, converting documents of violations for administrative penalties, the
implementation of decisions on administrative penalties are specified in the
Decree No. 128/2008/ND-CP.
2. The authority and procedure for taking
measures for enforcing the implementation of decisions on administrative
penalties are specified in the Government's Decree No. 37/2005/NĐ-CP
dated March 18th 2005, on the procedure for taking measures for
enforcing the implementation of decisions on administrative penalties.
3. The penalties for administrative violations
must be recorded and kept as prescribed by law.
4. The persons competent to impose
administrative penalties shall announce the names, addresses of the penalized
organizations and individuals producing and trading counterfeit goods, the
kinds of counterfeit goods, the signs for recognizing counterfeit goods, the
locations where counterfeit goods are found on their websites, or provide such
information for the mass media.
Article 16. The authority
to impose penalties of People’s Committees at all levels
The Presidents of the People’s Committees of
communes, wards, towns; the Presidents of the People’s Committees of districts,
and cities affiliated to central-affiliated cities and provinces, the
Presidents of People’s Committees of central-affiliated cities and provinces
are entitled to impose administrative penalties, in accordance with Article 28,
29, and 30 of the Ordinance, for the local production and trade of counterfeit
goods prescribed in this Decree.
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1. The competent persons of the market
management agency prescribed in Article 37 of the Ordinance are entitled to
impose administrative penalties for the production and trade of counterfeit
goods prescribed in Articles from 8 to 14 of this Decree.
2. The authority to impose administrative
penalties in Clause 1 of this Article of market controllers:
a) Issue warnings;
b) Impose fines of up to 200,000 VND.
3. The authority to impose
administrative penalties in Clause 1 of this Article of Leaders
of Market management squads:
a) Issue warnings;
b) Impose fines of up to 5,000,000 VND.
c) Confiscate the exhibits and instruments for
committing violations valued at up to 30,000,000 VND
d) Take the remedial measures applicable to the
administrative violations prescribed in this Decree, except for the compelled
export or re-export of counterfeit goods and exhibits.
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a) Issue warnings;
b) Impose fines of up to 20,000,000 VND.
c) Indefinitely or temporarily revoke the
practice certificate or license, temporarily suspend the production and trade
of illegal goods and services.
d) Confiscate the exhibits and instruments for
committing violations;
dd) Take the remedial measures
applicable to the administrative violations prescribed in this
Decree.
5. The authority to impose
administrative penalties in Clause 1 of this Article of Directors of
Departments of Market management:
a) Issue warnings;
b) Impose fines of up to 70,000,000 VND.
c) Indefinitely or temporarily revoke the
practice certificate or license, temporarily suspend the production and trade
of illegal goods and services;
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dd) Take the remedial measures
applicable to the administrative violations prescribed in this Decree.
Article 18. The authority
to impose administrative penalties of the police, the customs, the Border
guard, the Coastguard, and specialized inspectors
1. Chiefs of police of districts, chiefs of
police divisions in charge of investigation into crimes against economic
management and order, Directors of provincial police departments, Directors of
police departments in charge of investigation into crimes against economic
management and order are entitled to impose administrative penalties, in
accordance with Article 31 of the Ordinance, for the production and trade of
counterfeit goods prescribed in this Decree.
2. The competent persons of the Border guard,
the Coastguard, and the customs are entitled to impose administrative
penalties, in accordance with Article 32, 33, and 34 of the Ordinance, for the
local export, import, and trade of counterfeit goods across the border
prescribed in this Decree.
3. The competent persons of specialized
inspection agencies are entitled to impose administrative
penalties, in accordance with Article 38 of the Ordinance,
for the local production and trade of counterfeit goods
prescribed in this Decree.
Article 19. Valuating
the exhibits of administrative violations
The valuation of exhibits and instruments for
committing violations as the basis for the determination of the fine
bracket and the authority to impose penalties are specified in Article 34
of the Decree No. 128/2008/ND-CP, in particular:
1. The values of counterfeit goods prescribed in
Point a Clause 4 Article 3 of this Decree are the market prices of the genuine
goods that have the same technical features and use when the administrative
violations are found as prescribed in Point d Clause 2 Article 34 of the Decree
No. 128/2008/ND-CP. The Heads of the inspecting agency that discovers the
administrative violations or handles the administrative violations shall
organize the valuation in accordance with this Clause.
2. If the value is not able to be identified as
prescribed in Clause 1 this Article, a valuation council shall be established
as prescribed in Clause 3 Article 34 of the Decree No. 128/2008/ND-CP in order
to valuate the counterfeit goods based on the priority prescribed in Clause 2
Article 34 of the Decree No. 128/2008/ND-CP.
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Article 20. Handling the
exhibits and instruments for committing violations.
1. The exhibits and instruments
for committing violations shall be handle in accordance with the
Ordinance and the Decree No. 128/2008/ND-CP.
2. The violating organizations and individuals
shall pay the cost of the recall, destruction, and removal of illegal elements
when these measures are taken.
3. If the violating organizations and
individuals fails to pay the cost of destruction, or the counterfeit goods are
abandon, the State budget shall cover the cost of the destruction of
counterfeit goods as prescribed.
Article 21.
The prevention of administrative violations
This implementation of
measures for preventing administrative violations and ensuring the
administrative penalties for the production and trade of counterfeit goods are
specified in the Ordinance and the Decree No. 128/2008/ND-CP.
Article 22. The
management and use of the money collected from handling administrative
violations
The management and use of the money collected
from the administrative penalties for the production and trade of counterfeit
goods, including fines, revenues from the sale of confiscated exhibits and
instruments (if any) are prescribed by the Minister of Finance.
Chapter 4.
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Article 23. Effects
1. This Decree takes effect on March 01st
2013.
2. The following regulations are annulled:
a) Clause 8 Article 3, Article 24, and Article
25 of the Government's Decree No. 06/2008/NĐ-CP dated January 16th
2008 on the penalties for administrative violations of commerce, amended and
supplemented in the Government's Decree No. 112/2010/NĐ-CP
dated December 01st 2010, amending and supplementing a number of
articles of the Decree No. 06/2008/NĐ-CP;
b) Clause 6 Article 3, Article 7 and Article 10
of the Government's Decree No. 15/2010/NĐ-CP dated March
01st 2010, on the penalties for administrative violations of the
production and trade of fertilizers;
b) Article 12 of the Government's Decree No. 06/2009/NĐ-CP dated
January 22nd 2009, on the penalties for administrative violations of
the production and trade of wine and tobacco;
d) Clause 28 Article 2 of the Government's
Decree No. 33/2005/NĐ-CP dated March 15th 2005,
detailing the implementation of a number of articles of the Ordinance on
Veterinary Medicine;
dd) Point a, Point b, and
Point d Clause 2 Article 23 of the Government's Decree No.
93/2011/NĐ-CP dated October 18th 2011, on the
penalties for administrative violations of drugs, cosmetics, and medical
equipment;
e) Point b Clause 4 Article 13, Point c Clause 6
Article 14, and Point c Clause 2 Article 17 of the Government's Decree No. 26/2003/NĐ-CP dated March 19th 2003 on the penalties
for administrative violations of plant protection and quarantine;
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h) Clause 2 Article 3, Article 13, and Article
14 of the Government's Decree No. 08/2011/NĐ-CP dated
January 25th 2011, on the penalties for administrative violations of
animal feed;
j) Point b and Point c Clause 4 Article 16 of
the Government's Decree No. 97/2007/NĐ-CP dated June 07th
2007 on the administrative penalties and enforcement of the administrative
decisions of the customs, amended and supplemented in the Government's Decree
No. 18/2009/NĐ-CP dated February 18th 2009,
amending and supplementing a number of articles of the Decree No. 97/2007/NĐ-CP;
k) Other regulations of the Government on the
counterfeit goods and the administrative penalties for the production and trade
of counterfeit goods promulgated before this Decree takes effect.
Article 24. Transitional
regulations.
1. The penalties for the acts of producing and
trading counterfeit goods that have been recorded before this Decree takes
effect shall comply with the Decrees on the penalties for administrative
violations of relevant fields.
2. For the acts of producing and trading
counterfeit goods that have been recorded before this Decree takes effect, but
penalized after the effective date of this Circular, this Decree shall apply as
long as the forms or rates of penalties in this Decree are heavier.
Article 25. Implementation
responsibilities
1. The Minister of Industry and Trade shall
guide and organize the implementation of this Decree.
2. The Minister of Finance shall preside and
cooperate with the Ministry of Industry and Trade and relevant Ministries in
specifying the implementation of Point d Clause 4 Article 5, Clause 3 Article
20, and Article 22 of this Decree.
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FOR THE
GOVERNMENT
THE PRIME MINISTER
Nguyen Tan Dung