Decree No. 49/2009/ND-CP dated May 21, 2009, of the Government providing for the sanctioning of administrative violations in technology transfer

THE GOVERNMENT

Decree No. 49/2009/ND-CP of May 21, 2009, 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

1. This Decree provides for acts of violation, sanctioning forms and levels, remedies, and competence to sanction administrative violations in technology transfer.

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 administra-tive 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;

c/ Expulsion, against foreigners committing administrative violations in technology transfer  prejudicial to defense interests or national security.

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

1. The statute of limitations for sanctioning administrative violations in transferring technologies from abroad into Vietnam or vice versa is 2 years, counting from the date a violation is committed.

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:

a/ Confiscation of material evidences or means used for technology transfer, for acts of violation specified in Clause 2 of this Article;

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:

Confiscation of material evidences or means used for technology transfer, for acts specified in Clause 1 of this Article.

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:

Forcible destruction of products turned out with transferred technologies or forcible transportation out of Vietnamese territory or forcible export of products related to technologies transferred from abroad into Vietnam (if any) specified in Clause 2 of this Article.

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:

a/ Signing contracts to transfer technologies on the list of those restricted from transfer before obtaining written approval of competent state management agencies;

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.

4. Remedy:

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.

2. A fine of between VND 2,000,000 and 3,000,000 shall be imposed on organizations or individuals that are granted technology-transfer contract registration certificates but fail to notify in writing the cancellation of their technology transfer contracts to the agencies having certified the registration of these contracts.

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.

Article 13. Acts of violating the policy to promote technology application, transfer or renewal

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;

b/ Failing to report on or reporting on and producing documents irrelevant to the inspection, examination, or handling of violations.

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;

e/ 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;

f/ Causing difficulties to inspection or examination activities.

Chapter III

COMPETENCE TO SANCTION ADMINISTRATIVE VIOLATIONS

Article 15. Competence of the specialized science and technology inspectorate to sanction administrative violations

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;

d/ Confiscate material evidences or means used in administrative violations in technology transfer;

e/ 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;

e/ 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:

a/ Serve caution;

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;

e/ Force the application of remedies specified in Clause 3, Article 3 of this Decree.

Article 17. Competence of the people’s public security force to sanction administrative violations

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.

Article 20. Guidance and implementation responsibilities

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