Circular No. 04/2010/TT-BKHCN guiding the implementation of certain provisions of Decree No. 49/2009/NĐ-CP dated May 21, 2009 of the Government on administrative penalties for violations in technology transfer activities.

CIRCULAR

Guidelines for Implementing Certain Provisions of Decree No. 49/2009/NĐ-CP

dated May 21, 2009 of the Government on Administrative Sanctions for Violations in Technology Transfer Activities

 Administrative Sanctions for Violations in Technology Transfer Activities

Pursuant to Decree No. 28/2008/NĐ-CP dated March 14, 2008 of the Government on the Functions, Tasks, Authorities, and Organizational Structure of the Ministry of Science and Technology;

Pursuant to Decree No. 49/2009/NĐ-CP dated May 21, 2009 of the Government on Administrative Sanctions for Violations in Technology Transfer Activities;

The Ministry of Science and Technology issues guidelines for implementing certain provisions of Decree No. 49/2009/NĐ-CP dated May 21, 2009 of the Government on Administrative Sanctions for Violations in Technology Transfer Activities as follows:

I. GENERAL PROVISIONS

This Circular applies to units under the Ministry of Education and Training; departments of education and training, education and training divisions; preschool education institutions, general education institutions, regular education institutions, teacher training colleges, college of education, universities, universities, academies, other educational institutions, and related organizations and individuals (hereinafter referred to collectively as agencies and units).

These Circulars provide guidance on administrative sanctions for violations in technology transfer activities against organizations and individuals who commit any of the administrative violations stipulated in Decree No. 49/2009/NĐ-CP dated May 21, 2009 of the Government on Administrative Sanctions for Violations in Technology Transfer Activities (hereinafter referred to as Decree 49).

2. Forms of Administrative Sanctions and Measures to Mitigate Consequences

a) Form of Administrative Sanction: Deportation

The form of administrative sanction of deportation shall be applied in accordance with Article 15 and Article 31 of the Law on Handling Administrative Violations.

b) Form of Administrative Sanction: Revocation of the Right to Use the Technology Transfer Permit, Certificate of Registration of Technology Transfer Contract.

The form of administrative sanction of revoking the right to use the Technology Transfer Permit (hereinafter referred to as the Permit) shall apply to organizations and individuals who have been granted the Permit to transfer one or more technologies listed in the Restricted Technology Transfer List and who violate the provisions of Decree 49 during the process of transferring technology, and such violation is subject to the form of administrative sanction of revoking the right to use the Permit.

The form of administrative sanction of revoking the right to use the Certificate of Registration of Technology Transfer Contract (hereinafter referred to as the Certificate) shall apply to organizations and individuals who transfer technologies not listed in the Prohibited Technology Transfer List or the Restricted Technology Transfer List but have registered the transfer with the Ministry of Science and Technology or the Department of Science and Technology and have been granted the Certificate to enjoy state incentives and support, and who violate the provisions of Decree 49 during the process of transferring technology, and such violation is subject to the form of administrative sanction of revoking the right to use the Certificate.

The revocation of the right to use the Permit and the Certificate must be recorded in the decision on administrative sanction. In cases where the revocation of the right to use is for a limited period, the duration must be clearly stated in the decision. At the same time, within ten working days from the date of issuance of the decision on administrative sanction, the person issuing the decision must notify in writing the agency that issued the Permit and the Certificate about the revocation of the right to use the Permit and the Certificate.

During the period when the right to use the Permit and the Certificate is revoked, the violating organization and individual may not continue to implement the contents permitted by the Permit and the Certificate.

When the period of revocation expires and the organization and individual who were sanctioned have completed the decision on administrative sanction, the person deciding on the sanction shall return the Permit and the Certificate to the organization and individual whose Permit and Certificate were revoked. The act of returning the Permit and the Certificate must be documented in a record.

c) Measures to Mitigate Consequences

The measures to mitigate consequences prescribed in Clause 5, Article 5 and Clause 4, Article 7 of Decree 49 shall be applied in the following order:

- Compelling the removal of products and related technological equipment out of the territory of Vietnam or compelling their re-export;

- If it is not possible to apply the measure of compelling the removal of products and related technological equipment out of the territory of Vietnam, then the measure of compelling destruction shall be applied;

The measure of compelling the mitigation of negative health impacts prescribed in Point b, Clause 3, Article 6 of Decree 49: is the requirement for the violating organization or individual to organize medical examinations, treatment, and recovery of health for those affected by the violation.

The process of organizing medical examinations and treatment for the affected persons must ensure the following principles:

- The health of the affected person must be caused by the violation, i.e., there must be a causal relationship between the violation and the harm to the health of the affected person;

- To what extent the impact occurs, to that extent the mitigation must occur.

The implementation of the above measures to mitigate consequences shall be carried out in accordance with Articles 20, 21, 21a and Clause 2, Article 61 of the Law on Handling Administrative Violations.

II. GUIDELINES FOR DETERMINING ADMINISTRATIVE VIOLATIONS

1. The act of taking advantage of technology transfer activities to harm national defense, security, and the legitimate rights and interests of organizations and individuals as stipulated in Article 5 of Decree 49: is the act of organizations and individuals utilizing favorable conditions created by state policies and laws encouraging technological development to transfer technology in a manner that harms national defense, security, and the legitimate rights and interests of other organizations and individuals without reaching the level of criminal prosecution.

2. The act of transferring technologies to produce products contrary to morality, unsuitable with the ethnic identity, customs, and traditions of the nation as stipulated in Point a, Clause 1, Article 6 of Decree 49: is the act of organizations and individuals transferring technologies not listed in the Prohibited Technology Transfer List but producing products that can distort or negatively affect social norms, relationships between individuals and groups, or good and healthy customs and traditions recognized and respected by society.

In the process of examining and determining the factor "contrary to morality, unsuitable with the ethnic identity, customs, and traditions of the nation," the competent authority responsible for inspection and punishment shall base its conclusions and decisions on administrative sanctions on actual circumstances and the opinions of cultural management agencies at the local level, and bear responsibility for their decisions.

3. The act of transferring technology causing adverse effects on human health as stipulated in point b, Clause 1, Article 6 of Decree 49: is the act of organizations or individuals transferring technologies where the implementation process of such technologies or products produced from them may cause adverse effects on human health. If the transferred technology falls under the Prohibited Technology Transfer List, it shall be penalized according to the provisions of Clause 2, Article 7 of Decree 49.

4. The act of transferring technology for producing products prohibited by Vietnamese law as stipulated in point c, Clause 1, Article 6 of Decree 49: is the act of organizations or individuals transferring technologies not included in the Prohibited Technology Transfer List but the products produced from such technologies fall under the List of Prohibited Goods and Services issued together with Decree No. 59/2006/NĐ-CP dated June 12, 2006 detailing the Law on Trade regarding prohibited goods and services, restricted goods and services, and goods and services subject to conditions.

5. The act of transferring technology falling under the Prohibited Technology Transfer List and the Restricted Technology Transfer List as stipulated in Article 7 of Decree 49: is the act of organizations or individuals transferring technology that falls under the Prohibited Technology Transfer List or illegally transferring technology that falls under the Restricted Technology Transfer List specified in the Appendices issued together with Decree No. 133/2008/NĐ-CP of the Government dated December 31, 2008 detailing and guiding the implementation of certain articles of the Law on Technology Transfer.

6. The act of transferring technology not owned by oneself as stipulated in point a, Clause 2, Article 8 of Decree 49: is the act of organizations or individuals transferring a certain technology to another organization or individual without owning the rights to it. The transferring organization or individual may know or not know who owns the technology, but the violation is determined if they carry out the transfer of the technology.

Example: Research Institute A and Company B were assigned to implement a project to complete technology C funded by state budget. At the end of the project, the State granted ownership rights to the research results and the created technology to Company B. However, Research Institute A transferred the technology to Company D on its own initiative. Therefore, Research Institute A violated point a, Clause 2, Article 8 of Decree 49.

7. The act of transferring technology when the technology does not belong to the right to transfer usage rights as stipulated in point b, Clause 2, Article 8 of Decree 49: is the act of an organization or individual only having the right to use the technology, not the right to transfer usage rights, but transferring usage rights of the technology to another organization or individual on their own initiative.

Example: Company A signed a technology transfer contract for beer yeast production with Company B. The Contract stipulates that Company B only has the right to use the technology and cannot transfer it to a third party, according to Clause 3, Article 13 of the Law on Technology Transfer. However, Company B transferred the usage rights of the beer yeast production technology to Company C. Thus, Company B violated point b, Clause 2, Article 8 of Decree 49.

In cases where the Contract does not specify the above content, transferring the technology to a third party by Company B does not violate point b, Clause 2, Article 8 of Decree 49.

8. The act of fraud or deception in establishing a technology transfer contract to obtain a Registration Certificate for the technology transfer contract or a Technology Transfer Permit as stipulated in point a, Clause 2, Article 9 of Decree 49: is the act of organizations or individuals establishing a technology transfer contract containing false clauses with the purpose of obtaining a Registration Certificate for the technology transfer contract or a Technology Transfer Permit from competent state management authorities.

9. The act of failing to report to the state management agency on science and technology before systematically disseminating and transferring agricultural, forestry, and aquatic product cultivation, preservation, and processing technologies in rural areas, mountainous regions, or economically disadvantaged areas as stipulated in point b, Clause 1, Article 11 of Decree 49: is the act of organizations or individuals not reporting in writing to the state management agency on science and technology at the local level before systematically transferring agricultural, forestry, and aquatic product cultivation, preservation, and processing technologies in rural areas, mountainous regions, or economically disadvantaged areas as defined in the Investment Priority Areas List issued together with Decree No. 108/2006/NĐ-CP dated September 22, 2006 detailing and guiding the implementation of certain articles of the Investment Law.

10. The act of organizations or individuals who have been granted a Registration Certificate for the technology transfer contract but fail to notify in writing the authority that confirmed the contract registration when canceling the contract as stipulated in Clause 2, Article 11 of Decree 49: is the act of organizations or individuals who have been granted a Registration Certificate for the technology transfer contract to enjoy state incentives and support, but when the contract is canceled by a competent state authority, both parties agree to cancel the contract or other reasons lead to the cancellation of the contract, and within 90 days from the date of contract cancellation, they fail to notify in writing the state management authority that issued the Registration Certificate for the technology transfer contract.

The subject liable to punishment under this provision is the organization or individual representing the relevant parties to submit the technology transfer contract registration dossier to the competent state management authority.

11. The act of fraud or forgery to benefit from support and incentives under policies encouraging and promoting technology transfer as stipulated in Clause 2, Article 13 of Decree 49: is the act of organizations or individuals engaging in dishonest behavior (using fake documents, altering, erasing contents...) in establishing, declaring, submitting applications for review by competent authorities to enjoy support and incentives under policies encouraging and promoting technology transfer.

12. The act of causing difficulties for inspection and supervision activities as stipulated in Point e Clause 2 Article 14 Decree 49: refers to the actions of organizations or individuals creating situations that make authorized inspectors and supervisors encounter difficulties in their inspection and supervision activities or unable to continue performing their duties.

Example:

- The representative of the organization or individual subject to inspection and supervision assigns a person without authority or does not authorize a qualified person to work with the inspection team.

- The representative of the organization or individual subject to inspection and supervision fails to comply with lawful requests of the authorized inspector or supervisor conducting the inspection and supervision.

III. AUTHORITY AND PROCEDURES FOR ADMINISTRATIVE SANCTIONS

1. The authority to impose administrative sanctions on violations in technology transfer activities shall be implemented according to the provisions of Articles 15, 16, 17, and 18 of Decree 49.

2. In cases where persons specified in Articles 17 and 18 of Decree 49 are performing their duties and discover administrative violations that fall outside their sanctioning authority, they must promptly prepare a record and within ten working days from the date of preparation, transfer the record to the authorized person specified in Articles 15 and 16 of Decree 49 to proceed with the imposition of sanctions.

The preparation of records regarding administrative violations shall be carried out in accordance with the provisions of Article 55 of the Administrative Violation Handling Ordinance.

3. The procedures for imposing administrative sanctions in technology transfer activities shall be carried out in accordance with the provisions of Articles 54, 55, 56, and 57 of the Administrative Violation Handling Ordinance. Within ten working days from the date of the administrative sanction decision, the authorized sanctioning authority must notify in writing the Department of Science and Technology where the organization or individual subject to the sanction has its headquarters.

IV. IMPLEMENTATION

1. This Circular takes effect from September 1, 2010.

2. During implementation, if there are difficulties or obstacles, agencies and units are requested to report to the Ministry of Science and Technology for coordination and resolution./.