Circular No. 02/2007/TT-BKHCN guiding the implementation of certain provisions of Decree No. 127/2004/NĐ-CP dated May 31, 2004 of the Government on administrative penalties for violations in scientific and technological activities.

 

CIRCULAR

Guidelines for Implementing Certain Provisions of Decree No. 127/2004/NĐ-CP dated May 31, 2004 of the Government on Administrative Sanctions for Violations in Science and Technology Activitiesin scientific and technological activities

Pursuant to Decree No. 54/2003/NĐ-CP dated May 19, 2003 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Science and Technology, and Decree No. 28/2004/NĐ-CP dated January 16, 2004 of the Government amending and supplementing certain provisions of Decree No. 54/2003/NĐ-CP dated May 19, 2003;

Pursuant to Decree No. 127/2004/NĐ-CP dated May 31, 2004 of the Government on Administrative Sanctions for Violations in Science and Technology Activities;
The Ministry of Science and Technology hereby provides specific guidelines for certain contents regarding administrative sanctions for violations in science and technology activities as follows:

I. GENERAL PROVISIONS

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These Circulars apply to acts of administrative violations in science and technology activities as prescribed in Decree No. 127/2004/NĐ-CP dated May 31, 2004 of the Government on Administrative Sanctions for Violations in Science and Technology Activities (hereinafter referred to as Decree 127).

2. Time Limit for Imposing Sanctions

The time limit for imposing administrative sanctions for violations in science and technology activities is one year from the date the violation is committed. Acts of violation related to finance in science and technology activities have a two-year time limit for imposing sanctions, including:

- Acts of fraud to obtain preferential policies on finance and credit as stipulated in Clause 2, Article 10 of Decree 127;

- Acts of violating regulations on joint ventures, joint operations, and receiving sponsorship to conduct science and technology activities as stipulated in Article 18 of Decree 127;

- Acts of establishing a Science and Technology Development Fund contrary to the registered content to gain improper benefits as stipulated in Clause 3, Article 19 of Decree 127;

- Acts of misappropriating, failing to return within the specified period without legitimate reasons the sponsored funds from the state budget or the Science and Technology Development Fund at various levels as stipulated in Clause 4, Article 19 of Decree 127.

3. Forms of Sanction

a) The main forms of sanction prescribed in Clause 1, Article 6 of Decree No. 127 include: warning and fine.

Determination of the average level of the fine range for the fine form of sanction shall be carried out in accordance with the provisions of Article 24 of Decree No. 134/2003/NĐ-CP dated November 14, 2003 detailing the implementation of certain provisions of the Administrative Violation Handling Ordinance 2002.

b) Supplementary forms of sanction:

Revocation of the right to use the Certificate of Registration for Scientific and Technological Activities for a limited or unlimited period: this refers to the competent authority's revocation of the Certificate of Registration for Scientific and Technological Activities (hereinafter referred to as the Certificate) for a limited or unlimited period when individuals or organizations holding the Certificate commit violations during their activities and fail to comply with the contents and requirements recorded in the Certificate. The revocation of the right to use the Certificate may cover all scientific and technological activities recorded in the Certificate, or only those areas of activity where violations occurred. Individuals or organizations whose rights to use the Certificate are revoked in a particular field of activity are not allowed to carry out scientific and technological activities in that field as recorded in the Certificate.

The revocation of the right to use the Certificate must be carried out in accordance with the jurisdiction prescribed in Point b, Clause 2; Point b, Clause 3; Point b, Clause 5 of Article 21 of Decree 127.

The person authorized to impose administrative sanctions may revoke the right to use the Certificate only if Decree 127 stipulates that organizations or individuals committing such violations will have their right to use the Certificate revoked. The revocation of the right to use the Certificate must be recorded in the decision on administrative sanctions. In cases of revocation for a limited period, the duration must be clearly stated in the decision on administrative sanctions. The person issuing the decision to revoke the right to use the Certificate must notify the competent state management agency about the revocation of the Certificate.

When the period of revocation of the right to use the Certificate has expired and the individual or organization holding the Certificate has complied with all the requirements and conditions recorded in the Certificate and the decision on administrative sanctions, the person who revoked the right to use the Certificate shall issue a decision to return the Certificate.

II. VIOLATIONS

1. Acts of conducting scientific and technological activities contrary to ethics, customs, and traditions of the nation; causing damage to natural resources, the environment, and human health; spreading diseases; harming animals and plants; exploiting scientific activities to distort the Party's policies, laws of the State, and undermine the unity of the people as stipulated in Article 7 of Decree 127 include:

- Conducting scientific research to produce products contrary to ethics and unsuitable to the national identity and customs and traditions;

- Using technologies to produce or test products prohibited by Vietnamese law;

- Conducting scientific research and developing technology with products or research processes that violate relevant laws, causing damage to natural resources, the environment, or production and daily life.

- Exploiting scientific and technological activities to present viewpoints, results, or comments that misrepresent or distort objective reality; publicly presenting and disseminating research results contrary to the law with malicious intent, deliberately distorting the Party's policies and laws of the State.

2. Acts of appropriating the results of scientific and technological activities as stipulated in Article 8 of Decree 127 refer to the use of the results of scientific and technological activities owned by other individuals or organizations for personal or organizational material and spiritual benefit, including:

- Using, publishing data, technological processes, information related to the results of scientific and technological activities owned by other individuals or organizations to gain material benefits.

- Registering and publishing research works of other individuals or organizations without their permission.

- Using the results of scientific research, data, and information from other individuals or organizations as one's own in scientific reports and documents without clearly indicating the origin and source of those results.

- Using inventions, technical improvements, and process rationalizations from other individuals or organizations to participate in science and technology competitions, awards, exhibitions, etc., without disclosing their true origin.

3. Acts violating the transfer, assignment, and provision of information on the outcomes of scientific and technological activities as stipulated in Article 9 of Decree 127 include:

Information on the outcomes of scientific and technological activities includes data, figures, news obtained from such activities. Such information can be provided in textual, audio, graphic, image, film, video, or other carrier forms.

Acts of transferring or assigning the outcomes of scientific and technological activities contrary to regulations are manifested as follows:

- Individuals or organizations conducting scientific and technological activities using state budget funds or assets of other individuals or organizations to carry out such activities and achieving results shall enjoy copyright according to the law, unless otherwise agreed in the contract. However, if the author transfers the outcome of the scientific and technological activity without the owner's consent, it contravenes the law;

- Individuals or organizations that are not the owners of information on scientific and technological activities (generated through scientific and technological research, analysis, testing, consulting, appraisal services) but provide such information without the owner's consent;

- Individuals or organizations that are the owners of the outcomes of scientific and technological activities but create false information, distort facts, or provide misleading information about these outcomes, exploiting the provision of such information to infringe upon the rights and legitimate interests of other individuals or organizations.

4. Acts of fraud and forgery in scientific and technological activities as stipulated in Article 10 of Decree 127 are manifested as follows:

- Forgery and fraud in the preparation of application documents for selecting the principal implementer of scientific and technological tasks, including: non-transparent declarations regarding the achievements of the organization applying to be the principal implementer of the scientific and technological task, the academic history of the individual applying to be the principal investigator of the project, the organizations and individuals applying to participate in collaboration, financial capability...;

- Making false accusations or submitting false complaints or denunciations to damage the reputation of scientists or scientific and technological organizations participating in the selection of the principal implementer of scientific and technological tasks;

- Fraud during the implementation of scientific and technological tasks, including: reporting inaccurately on progress and research results; failing to perform the contents stipulated in the signed contract but reporting completion to receive funding; fabricating data; using fake contracts, invoices, certificates, forged signatures to settle funds allocated from the state budget without reaching the level of criminal prosecution; fraud during the acceptance and evaluation of scientific and technological tasks; fraud in the use of funds allocated from the state budget for scientific and technological activities;

In cases where violations under Article 10 reach the level requiring the revocation of the approval decision for the selection result, after issuing the penalty decision, the authority with the power to impose penalties shall issue a document requesting the competent scientific and technological management agency to consider and issue a decision to revoke the related selection decision.

5. Acts violating confidentiality regulations in scientific and technological activities as stipulated in Article 11 of Decree 127:

Confidential materials in scientific and technological activities include: scientific and technological activity materials, scientific and technological documents, research specimens, inventions, utility models containing state secrets.

Inventions and utility models containing state secrets are:

- Inventions and utility models of special importance to the development of science and technology, economy, and society that have not been disclosed;

- Inventions and utility models submitted for registration at the National Intellectual Property Office related to national security and defense that have not been disclosed or are not allowed to be disclosed by authorized agencies;

- Inventions and utility models submitted for registration at the National Intellectual Property Office that have not been disclosed.

The dissemination, publication, and circulation of inventions, utility models, scientific and technological documents, and research specimens containing state secrets within the country and abroad must comply with the provisions of the State Secrets Protection Ordinance 2000 and Government Decree No. 33/2002/NĐ-CP dated March 28, 2002 detailing the implementation of the State Secrets Protection Ordinance.

6. Acts of illegally obstructing state management activities in science and technology as stipulated in Clause 3, Article 12 of Decree 127 include: causing difficulties, evading inspections and audits; failing to implement or delaying the implementation of requests, recommendations, conclusions, and decisions of state management agencies in science and technology, inspection and audit teams.

7. Acts of failing to register and submit the results of implementing scientific and technological tasks funded by the state budget as stipulated in Article 13 of Decree 127:

All results of implementing scientific and technological tasks funded partially or entirely by the state budget, including programs, projects, basic investigation tasks, must be registered and stored at the National Science and Technology Information Center in accordance with Government Decree No. 159/2004/NĐ-CP dated August 31, 2004 on scientific and technological information. If the principal implementer of the scientific and technological task does not proceed with registration and submission of the results, they will be subject to administrative penalties.

8. The acts violating the provisions on the activities of members of scientific and technological councils as stipulated in Article 14 of Decree 127 include:

 - Failing to ensure democratic and transparent principles in the operation of the council; violating regulations on consulting, reviewing, evaluating, and selecting.

 - Publishing and providing information related to the evaluation process, comments, and consulting results without the consent of the agency that established the council.

9. The acts violating the provisions on the use and dissemination of scientific and technological activity results as stipulated in Article 15 of Decree 127 include:

 - Organizations and individuals engaged in scientific and technological activities self-funding scientific and technological activities for disseminating, promoting, applying new technological processes, products, livestock, and new crop varieties that harm the environment, public health, people's lives, national interests, and national defense without prior approval from competent authorities.

 - Announcing the results of basic surveys, practical investigations, scientific seminars, and other scientific and technological activity results related to sensitive economic and social issues without permission from the owner of the results, competent authority, or the main organizer of the seminar.

 - Disseminating analysis, review, and appraisal results without the consent of the ordering organization or individual.

10. The acts violating the provisions on joint ventures, collaborations, and receiving sponsorships for scientific and technological activities as stipulated in Article 18 of Decree 127 include:

 - Individuals currently working in scientific and technological organizations directly receiving sponsorships without going through the organization they are a member of.

 - Individuals currently working in a scientific and technological organization having their own research topics or being hired by foreign entities to perform scientific and technological tasks outside the scope of management of the organization they belong to and not within areas encouraged by the State but failing to report the receipt of sponsorship to the Department of Science and Technology.

 - Individuals not belonging to any scientific and technological organization receiving sponsorship from foreign organizations or individuals for scientific and technological activities in areas not encouraged by the State but failing to report the receipt of sponsorship to the Department of Science and Technology.

11. The acts violating the provisions on registration, management, and use of the Scientific and Technological Development Fund and state budget allocated for scientific and technological activities as stipulated in Article 19 of Decree 127.

 a) The acts of not registering the operation of the Scientific and Technological Development Fund as provided in Clause 1 of Article 19 of Decree 127 include the following cases:

 - The Scientific and Technological Development Fund of ministries, ministerial-level agencies, and government agencies (hereinafter referred to as at the ministry level), and the Scientific and Technological Development Fund of provinces and centrally-administered cities (hereinafter referred to as at the provincial level) not registering with the Office of Registration of Scientific and Technological Activities under the Ministry of Science and Technology.

 - The Scientific and Technological Development Fund of enterprises operating independently from the enterprise, having full legal personality, and the Scientific and Technological Development Fund of organizations and individuals not registering their operations with the Department of Science and Technology of the province or centrally-administered city where the fund was established.

 b) The acts of misappropriating and not returning funds from the state budget or the Scientific and Technological Development Fund at various levels as stipulated in Clause 4 of Article 19 of Decree 127 include:

 - Organizations and individuals primarily responsible for implementing scientific and technological tasks using funding from the state budget or the National Scientific and Technological Development Fund, ministry-level, and provincial-level funds using funds for purposes other than those intended; misappropriating funds allocated or sponsored for scientific and technological activities; receiving funds but not performing the assigned tasks, or performing them inconsistently with the commitments made.

 - Failing to return funds within the specified time frame when implementing scientific and technological tasks without a valid reason as reflected in the scientific and technological contract commitments.

12. The acts violating the provisions on setting up and awarding scientific and technological prizes as stipulated in Article 20 of Decree 127 include:

 - Taking advantage of setting up and awarding scientific and technological prizes for material gain.

 - Taking advantage of setting up scientific and technological prizes to offer awards encouraging unethical scientific research, inconsistent with Vietnamese customs and traditions, or awards violating state policies and laws.

13. For the acts of using research and technology development funds for purposes other than those approved, not consistent with the approved program, and using research and technology development funds overlapping with other sources causing waste, penalties shall be imposed according to Decree No. 84/2006/NĐ-CP dated August 18, 2006, of the Government on compensation for damages, disciplinary actions, administrative penalties for thrift and waste prevention, and Circular No. 101/2006/TT-BTC dated October 31, 2006, of the Ministry of Finance guiding administrative penalties and compensation for damages in thrift and waste prevention.

III. PROCEDURES FOR ADMINISTRATIVE PENALTIES

1. Establishing Administrative Violation Records:

According to Article 50 of the Inspection Law and Article 55 of the Administrative Violations Handling Ordinance 2002, the following persons have the right to establish Administrative Violation Records in scientific and technological activities:

 - The Chief Inspector of the Ministry of Science and Technology;

 - The Chief Inspector of the Department of Science and Technology;

 - Specialized science and technology inspectors;

 - Heads of specialized science and technology inspection teams.

In cases where persons without the authority to impose penalties establish administrative violation records, they must transfer the file to the person with the authority to issue a penalty decision after establishing the record.

2. For administrative records prepared by science and technology inspectors and administrative violation penalty decisions signed by inspectors, the seal of the supervising inspection agency shall be affixed. The seal of the inspection organization shall be placed at the upper left corner, where the name of the inspection agency, number, and document code are recorded.

IV. MECHANISM FOR COORDINATION

In the process of managing scientific and technological activities, if any administrative violations in scientific and technological activities are discovered, units assigned state management tasks for science and technology under the Ministry of Science and Technology, ministries, ministerial-level agencies, government agencies, provincial people's committees, and centrally governed city people's committees shall promptly inform the specialized science and technology inspectorate to take timely measures to prevent and strictly handle such violations.

V. IMPLEMENTATION

1. This Circular takes effect fifteen days from the date of publication in the Official Gazette.

2. During implementation, any difficulties or obstacles should be reported promptly to the Ministry of Science and Technology for research and resolution./.