Decree No. 16/2000/NĐ-CP on administrative sanctions for violations in the field of state management of technology transfer

DECREE

Regulations on Administrative Sanctions for Violations

in the field of state management of technology transfer

________________________

THE GOVERNMENT

Pursuant to the Government Organization Law dated September 30, 1992;

Pursuant to Part VI, Chapter III of the Civil Code dated October 28, 1995;

Pursuant to the Ordinance on Handling Administrative Violations dated July 6, 1995;

Pursuant to Decree No. 45/1998/NĐ-CP dated July 1, 1998 detailing regulations on technology transfer;

At the proposal of the Minister of Science, Technology, and Environment,

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope and Applicability

1. Individuals and organizations specified in Article 5 of the Administrative Violation Handling Ordinance who intentionally or negligently violate the provisions in the field of state management of technology transfer but have not reached the level of criminal prosecution and according to regulations must be administratively sanctioned shall be sanctioned in accordance with this Decree.

2. Administrative violations of the provisions in the field of state management of technology transfer include:

a) Acts violating the state management regulations on ownership rights in the field of technology transfer; violating state management regulations on technology transfer in the fields of culture, national defense, national security, public order, and social safety;

b) Acts violating the state management regulations on: content, form, and time limit for implementing technology transfer contracts as stipulated in Articles 4, 8, and 15 of Decree No. 45/1998/NĐ-CP dated July 1, 1998 detailing regulations on technology transfer (hereinafter referred to as Decree No. 45/1998/NĐ-CP);

c) Acts violating the state management regulations on: reporting the process of implementing contracts with state management agencies, pricing standards for contract payments, approval and registration of technology transfer contracts, and obligations to provide information as stipulated in Articles 22, 23, 31, 32, 33, and 34 of Decree No. 45/1998/NĐ-CP;

d) Acts obstructing the inspection and supervision activities of competent state management agencies;

e) Acts violating the state management regulations on technology transfer service activities.

3. Technology transfer contracts that are not required to be approved or registered under the provisions of Decree No. 45/1998/NĐ-CP but which the parties voluntarily request state management agencies to approve or register also fall within the scope of regulation of this Decree.

4. The terms related to technology transfer used in this Decree shall be applied in accordance with the provisions of Article 2 of Decree No. 45/1998/NĐ-CP.

Article 2. Principles for applying administrative sanction forms

1. The principle of imposing administrative sanctions on the violations of individuals and organizations in the field of state management of technology transfer shall be implemented in accordance with the provisions of Article 3 of the Administrative Violation Handling Ordinance dated July 6, 1995 (hereinafter referred to as the Administrative Violation Handling Ordinance).

2. In cases where fines are imposed as a form of punishment, the specific amount of the fine is the midpoint of the fine range prescribed for that violation. If the violation has mitigating circumstances, the fine may be reduced below the midpoint, but it cannot be reduced below the minimum level of the fine range. If the violation has aggravating circumstances, the fine may be increased above the midpoint, but it cannot exceed the maximum level of the fine range.

3. Mitigating and aggravating circumstances shall be applied in accordance with Articles 7 and 8 of the Administrative Violation Handling Ordinance.

4. Individuals and organizations subject to administrative sanctions, if they do not reoffend within one year from the date of completion of the administrative sanction decision or from the date when the administrative sanction decision ceases to be effective, shall be considered as not having been administratively sanctioned.

Article 3. Forms of punishment for administrative violations in technology transfer

1. Principal forms of administrative penalty:

a) Warning: applicable to minor violations for the first time with mitigating circumstances;

b) Fine: applicable to violations with a higher nature and degree than warning. The amount of the fine is determined based on the nature and degree of the violation within the prescribed fine range.

2. Additional forms of punishment:

a) Revocation of the right to use licenses related to technology transfer activities;

b) Confiscation of objects and means used to commit administrative violations in technology transfer activities.

3. Apply other measures:

a) Compelling compensation for damages caused by administrative violations in technology transfer activities (for damages up to 1,000,000 VND caused by violations that the parties cannot agree upon, the authorized administrative sanction decision-maker will determine the compensation amount). Damages exceeding 1,000,000 VND shall be resolved through civil litigation procedures;

b) Compelling the implementation of measures to mitigate environmental pollution caused by administrative violations;

c) Compelling the destruction of products produced from transferred technology that is harmful to human health, the environment, and cultural values.

Article 4. Time limit for imposing administrative sanctions on violations

1. The time limit for imposing administrative sanctions on violations in technology transfer is two years from the date the administrative violation was committed for technology transfer activities from foreign countries into Vietnam or from Vietnam to foreign countries; the time limit is one year for domestic technology transfer activities. If the deadline mentioned above is exceeded, administrative sanctions will not be imposed, but measures provided for in points b and c, Clause 3, Article 3 of this Decree may still be applied.

2. For individuals who violate the law in technology transfer activities and are prosecuted, indicted, or have a case decided to be brought to trial under criminal proceedings, but subsequently have a decision to terminate the investigation or close the case, they shall be subject to administrative sanctions if they violate the provisions set out in this Decree; the time limit for administrative sanctions is three months from the date of receipt of the termination decision.

3. Within the time limits specified in Clause 1 and Clause 2 of this Article, if an organization or individual commits new administrative violations or deliberately evades or obstructs the imposition of sanctions, the time limits specified in Clauses 1 and 2 of this Article will not apply. The time limit will be recalculated from the date of committing the new administrative violation or the date when the act of evading or obstructing the imposition of sanctions ends.

Chapter II

VIOLATIONS, FORMS AND AMOUNTS OF SANCTIONS

Article 5. Violations of ownership rights in technology transfer

1. A fine of VND 500,000 to VND 2,000,000 shall be imposed on the technology provider where a technology transfer contract that does not require approval is entered into but the technology provider is not the lawful owner of the technology or is not authorized by the lawful owner to transfer the right to use the technology, thereby causing damage to the technology recipient.

2. Other measures shall be applied: compensation for damages shall be ordered in cases of violation of Clause 1 of this Article.

Article 6. Acts of taking advantage of the approval decision for a technology transfer contract; acts of violating state management regulations on technology transfer in the fields of culture, national defense, national security, public order, and social safety.

1. A fine of VND 10,000,000 to VND 20,000,000 shall be imposed on acts of taking advantage of the approval decision for a technology transfer contract to carry out unlawful acts.

2. A fine of VND 15,000,000 to VND 30,000,000 shall be imposed on acts of implementing a technology transfer contract in the field of national defense and national security without prior permission from the competent state agency.

3. A fine of VND 70,000,000 to VND 100,000,000 shall be imposed on acts of implementing a technology transfer contract that does not require approval but has adverse effects on culture, national defense, national security, public order, and social safety.

4. Additional forms of punishment and other measures:

a) Suspension of the right to use the relevant license related to the technology transfer contract for up to six months for acts of violation as stipulated in Clause 1 of this Article;

b) Order the destruction of products produced from the implementation of technology transfer contracts as stipulated in Clauses 2 and 3 of this Article which have adverse effects and cause negative consequences on culture, confiscation of evidence and means used to implement technology transfer contracts with violations as stipulated in Clause 3 of this Article.

Article 7. Acts of violating state management regulations on: registration of contracts, approval of technology transfer contracts; acts of implementing void contracts or contracts containing prohibited contents in the field of technology transfer.

1. Imposing a fine of from 10,000,000 VND to 20,000,000 VND for one of the following acts:

a) Implementing technology transfer contracts that require registration but fail to register; require approval but fail to submit to the competent authority for approval;

b) Failing to register or request supplementary approval when modifying or supplementing parts of the contract's content for contracts that require registration or approval;

c) Including prohibited contents in technology transfer contracts that do not require approval or registration as provided for in Article 13 of Decree No. 45/1998/NĐ-CP.

2. A fine of VND 20,000,000 to VND 40,000,000 shall be imposed on acts of implementing technology transfer contracts containing void contents as stipulated in Article 18 of Decree No. 45/1998/NĐ-CP.

3. Additional sanctions: suspension of the right to use the relevant license related to the technology transfer contract for up to six months in cases of violations as stipulated in point b, Clause 1; Clause 2 of this Article.

Article 8. Acts of violating regulations on reporting to state management agencies during the implementation of technology transfer contracts.

A fine of VND 1,000,000 to VND 3,000,000 shall be imposed on one of the following acts:

a) Failure to submit or late submission of the acceptance report; evaluation report on the implementation of the contract at each stage; annual report as prescribed in Article 22 of Decree No. 45/1998/NĐ-CP;

b) Failure to notify the approving agencies as required by law when the parties voluntarily terminate an approved technology transfer contract.

Article 9. Acts of violating state management regulations on the maximum time limit for completing technology transfer contracts and payment quotas exceeding the prescribed limits.

1. A fine of VND 2,000,000 to VND 5,000,000 shall be imposed on one of the following acts when implementing a technology transfer contract not using state funds:

a) The contract implementation period exceeds the prescribed period as stipulated in Article 15 of Decree No. 45/1998/NĐ-CP;

b) The payment quota exceeds the prescribed payment amount as stipulated in Article 23 of Decree No. 45/1998/NĐ-CP.

2. A fine of VND 15,000,000 to VND 30,000,000 shall be imposed on one of the following acts when implementing a technology transfer contract using state funds:

a) The contract implementation period exceeds the prescribed period as stipulated in Article 15 of Decree No. 45/1998/NĐ-CP;

b) The payment quota exceeds the prescribed payment amount as stipulated in Article 23 of Decree No. 45/1998/NĐ-CP.

3. Additional sanctions: confiscation and transfer to the state treasury the excess payment amount exceeding the value as stipulated in point b, Clause 2 of this Article.

Article 10. Acts of violating regulations on contract formation.

A fine of VND 20,000,000 to VND 30,000,000 shall be imposed on acts of implementing a technology transfer contract containing multiple items but not forming a single contract as prescribed in Article 8 of Decree No. 45/1998/NĐ-CP, instead splitting them into separate contracts for each item to evade state control.

Article 11. Acts of forgery and deception in application documents for approval and registration of technology transfer contracts.

A fine of VND 2,000,000 to VND 5,000,000 shall be imposed on acts of forgery and deception in application documents for approval and registration of technology transfer contracts.

Article 12. Acts of obstruction including refusal to provide information to state management agencies' inspection and supervision activities; violation of regulations on technology transfer consulting services.

1. Warning or a fine of up to VND 500,000 shall be imposed on organizations and individuals refusing to provide information related to technology transfer upon request of the competent authority.

2. A fine of VND 1,000,000 to VND 3,000,000 shall be imposed on organizations and individuals obstructing the inspection and supervision activities of state management agencies.

3. A fine of VND 2,000,000 to VND 5,000,000 shall be imposed on organizations and individuals providing technology transfer consulting services committing one of the following acts:

a) Providing incorrect advice or misinforming about legal provisions on technology transfer causing damage to the State or the parties involved in the contract;

b) Deceiving or coercing the parties involved in the contract during the consultation process.

c) Impersonating a state management agency or a person from a state management agency on technology transfer to provide technology transfer consulting services, causing misunderstanding about the functions, scope of authority, and responsibilities of organizations or individuals providing such services.

4. Additional penalties: revoke the license for technology transfer consulting services for up to six months for violations stipulated in Clause 3 of this Article.

Chapter III

AUTHORITY AND PROCEDURES FOR IMPOSING PENALTIES FOR ADMINISTRATIVE VIOLATIONS

Article 13. Competence to impose administrative penalties of specialized inspectors for science and technology

1. Specialized inspectors for science and technology under the Ministry of Science, Technology, and Environment and provincial Departments of Science, Technology, and Environment directly performing their duties have the right to:

a) To issue warnings;

b) To impose a fine up to two hundred thousand dong;

c) To confiscate objects and means used for committing administrative violations with a value up to VND 500,000;

d) Order the destruction of products created through technology transfer that harm the environment, human health; cause negative impacts on culture.

2. The Heads of specialized inspection departments for science and technology under provincial Departments of Science, Technology, and Environment have the right to:

a) To issue warnings;

b) Impose fines up to 10,000,000 VND;

c) Confiscate objects and means used to commit administrative violations in technology transfer activities;

d) Order compensation for damages caused by administrative violations up to VND 1,000,000;

e) Order the destruction of products created through technology transfer activities that harm the environment, human health; cause negative impacts on culture.

3. The Heads of specialized inspection departments for science and technology under the Ministry of Science, Technology, and Environment have the right to:

a) To issue warnings;

b) To impose fines up to VND 20,000,000;

c) Revoke the use of licenses related to technology transfer activities issued by the Ministry of Science, Technology, and Environment, other ministries, sectors, and provincial people's committees; the procedure for revoking the use of licenses shall be carried out in accordance with Article 50 of the Administrative Violation Handling Ordinance;

d) Implement additional penalties and other measures specified in Clauses 2 and 3, Article 3 of this Decree.

Article 14. Competence to impose administrative penalties of provincial people's committees

The Chairperson of provincial people's committees hereinafter referred to as the provincial people's committee has the right to:

a) To issue warnings;

b) Impose a fine up to VND 100,000,000.

c) Revoke the use of licenses related to technology transfer activities issued by the provincial people's committee.

For the use of licenses related to technology transfer activities issued by ministries, sectors, and higher-level state agencies, the Chairperson of the provincial people's committee shall issue a decision to stop the violation and request the competent state agency to revoke the use of the license.

d) Order the implementation of additional penalties and other measures prescribed in Clauses 2 and 3, Article 3 of this Decree.

Article 15. Competence to impose administrative penalties of customs, tax, and market management agencies

Customs agencies, tax agencies, and market management agencies shall impose administrative penalties on violations related to technology transfer in accordance with their respective competences as stipulated in Articles 30, 32, and 33 of the Administrative Violation Handling Ordinance.

Article 16. Allocation of competence to impose administrative penalties in technology transfer

1. In cases where administrative violations in technology transfer fall within the jurisdiction of multiple agencies, the agency that first receives the case shall impose the penalty.

2. In cases where administrative violations in technology transfer do not fall within the jurisdiction of the authority currently handling the case, the file must be transferred to the competent authority for decision.

3. When it is found that administrative violations in technology transfer indicate criminal offenses, the authority currently handling the case must immediately transfer the file to the investigation agency at the same level for resolution.

Strictly prohibited is the retention of cases involving violations with signs of criminal offenses in technology transfer for administrative penalty imposition.

Article 17. Procedures for imposing administrative penalties

1. Upon discovering administrative violations in technology transfer activities, the authorities specified in Articles 13, 14, and 15 of this Decree must immediately issue a decision to stop the violations.

2. For administrative violations subject to warnings or fines up to VND 20,000, the authority imposing the penalty must issue the penalty decision on the spot and must comply with the provisions set forth in Article 46 of the Administrative Violation Handling Ordinance.

3. For administrative penalties involving fines over VND 20,000, the authority imposing the penalty must conduct an administrative violation record, issue a penalty decision, and carry out fine procedures in accordance with Articles 47, 48, and 49 of the Administrative Violation Handling Ordinance.

4. Procedures for revoking the use of licenses related to technology transfer activities; confiscation and handling of objects and means used in administrative violations in the field of technology transfer must comply with the provisions of Articles 50, 51, and 52 of the Administrative Violation Handling Ordinance.

Article 18. Enforcement of penalty decisions

1. Organizations and individuals violating administrative regulations in the field of technology transfer must comply with the penalty decision within five days from the date they receive the decision, except when the penalty decision specifies a different execution period.

2. Organizations and individuals who are administratively penalized in the field of technology transfer and intentionally fail to comply with the penalty decision will be forced to comply and must bear all costs associated with organizing the enforcement of coercive measures as stipulated in Article 55 of the Administrative Violation Handling Ordinance.

3. Organizations subject to penalties must comply with the penalty decision while simultaneously identifying the fault of their own members who directly caused the administrative violation during the performance of their duties to pursue disciplinary responsibility and to compensate for damages in accordance with the law.

Chapter IV

SETTLEMENT OF COMPLAINTS AND REPORTS AND HANDLING OF VIOLATIONS

Article 19. Complaints, accusations, and resolution of complaints and accusations

1. Individuals or organizations subject to administrative penalties in technology transfer or their legitimate representatives have the right to appeal against the penalty decision of the authority imposing administrative penalties.

2. Individuals have the right to report administrative violations by any entities in technology transfer or illegal acts by authorities imposing administrative penalties in technology transfer to competent agencies, organizations, or individuals.

Rights and obligations of the complainant; jurisdiction to handle complaints as provided for in the laws on complaints and denunciations.

Procedures for handling complaints and denunciations as provided for in the laws on complaints and denunciations.

Article 20. Handling violations by persons authorized to impose administrative penalties in technology transfer.

Persons authorized to impose administrative penalties in technology transfer who violate provisions on administrative penalties, harassment, tolerance, protection, or failure to impose penalties or impose penalties beyond their authority shall be subject to disciplinary action or criminal liability depending on the nature and severity of the violation. In cases where damage is caused to agencies, organizations, or individuals, compensation for damages must be made in accordance with the law.

Chapter V

IMPLEMENTING PROVISIONS

Article 21. This Decree takes effect fifteen days from the date of signature.

Article 22. The Minister of Science, Technology, and Environment is responsible for detailing and organizing the implementation of this Decree.

Article 23. The Ministers, Heads of ministerial-level agencies, Heads of agencies under the Government, and Chairmen of provincial and centrally-administered city People's Committees are responsible for implementing this Decree.