Decree No. 127/2004/ND-CP dated May 31, 2004 of the Government prescribing the sanctioning of administrative violations in scientific and technological activities

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

1. This Decree prescribes violations acts, sanctioning forms and competence to sanction administrative violations in scientific and technological activities.

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.

4. An act of administrative violation shall be sanctioned only once; a personcommitting many administrative violation acts shall be sanctioned for every violation act; if many persons together commit one administrative violation act, each of them shall be sanctioned.

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;

f) Violations are committed due to particularly difficult plights not caused by the violators themselves;

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;

h) Continuing to commit administrative violations though the competent persons have demanded immediate stop thereof;

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

b) Fine: Depending on the nature and seriousness of violations, the competent persons shall decide on the fine levels in the prescribed fine bracket.

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;

d) Forcible return of funding appropriated or used for wrong purposes;

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.

3. A fine of between VND 70,000,000 and 100,000,000 for acts of abusing scientific activities to distort the Partys lines and policies and the States laws and undermine the national unity bloc.

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.

. Acts of violation regarding the transfer or assignment of, supply of information on, results of scientific and technological activities

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

1. A fine of between VND 2,000,000 and 5,000,000 for acts of failing to fully comply with law provisions when publicizing, disseminating and/or circulating inventions and utility solutions with contents classified as secrets.

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

1. A fine of between VND 2,000,000 and 5,000,000 for acts of failing to register or failing to submit the results of performing State budget-financed scientific and technological tasks at competent State management bodies.

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:

a) Failing to make additional registration upon any changes in and/or supplements to, the field of scientific and technological activities;

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.

. Acts of violating regulations on joint venture, association, aid reception for scientific and technological activities

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.

. Acts of violating the regulations on setting up and presenting science and technology awards

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:

a) Caution or a fine of up to VND 20,000,000;

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:

a) Caution or a fine of up to VND 20,000,000;

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.

Where violation acts fall beyond the competence of the specialized chief inspectors and inspectors of the provincial/municipal Services of Science and Technology, the violation dossiers shall be sent to the provincial/municipal Peoples Committees presidents for sanctioning the administrative violations according to competence.

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

1. Individuals and organizations committing administrative violations in scientific and technological activities must execute sanctioning decisions within 10 days after being handed the sanctioning decisions, except for cases prescribed in Article 65 of the Ordinance on Handling of Administrative Violations.

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

Chapter V

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.