Decree No. 45/1998/ND-CP on detailed regulations regarding technology transfer

DECREE OF THE GOVERNMENT

Regulations on technology transfer

 

THE GOVERNMENT

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

Based on the Civil Code dated October 28, 1995;

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

 

DECREE:

PART I
GENERAL PROVISIONS

Article 1. Scope of Application

1. This Decree provides detailed regulations on technology transfer to guide the implementation of provisions in Chapter III, Part Six of the Civil Code adopted by the National Assembly of the Socialist Republic of Vietnam on October 28, 1995.

2. The regulations on technology transfer in the Civil Code and this Decree shall apply to:

a) Technology transfer from abroad into Vietnam;

b) Technology transfer in foreign investment projects in the form of capital contribution with the value of technology or purchasing technology based on a Contract;

c) Domestic technology transfer for commercial purposes between the parties to the Contract;

d) Technology transfer from Vietnam to abroad.

3. The technology transfer section in Import Equipment Contracts or Technology Transfer Contracts accompanying Import Equipment Contracts must comply with this Decree.

4. In cases where international treaties to which Vietnam is a party provide different regulations from those in this Decree, such treaties shall be applied.

Article 2. Explanation of terms

In this Decree, the terms are understood as follows:

1. "Technology transfer" refers to the purchase and sale of technology based on a technology transfer Contract that has been agreed upon in accordance with the provisions of the law. The seller is obligated to transfer comprehensive knowledge of the technology or provide machinery, equipment, services, training, etc., along with the technological knowledge to the buyer, and the buyer is obligated to pay the seller to absorb and use the technological knowledge according to the conditions agreed upon and recorded in the technology transfer Contract.

2. "Transferor" refers to the "Party transferring technology" mentioned in the Civil Code.

3. "Recipient" refers to:

a) "Recipient of technology transfer" as stipulated in the Civil Code.

b) "Person granted the right to use industrial property objects" as stipulated in Article 816 of the Civil Code.

4. The payment price for technology transfer is the total amount the Recipient must pay the Transferor throughout the duration of the Contract.

5. "Trade secret" refers to important experiences, knowledge, technical information accumulated and discovered during research, production, and business activities, capable of creating high-quality products and services, generating significant economic benefits, and providing competitive advantages in the market.

6. Domestic technology transfer refers to technology transfer within the territory of Vietnam, excluding transfers through the boundaries of export processing zones.

7. Technology transfer from abroad into Vietnam refers to technology transfer from outside the national border or from within Vietnam's export processing zones into the territory of Vietnam.

8. Technology transfer from Vietnam to abroad refers to technology transfer from within the national border to outside the national border of Vietnam or transferring into export processing zones.

9. "Net selling price" is defined for domestic technology transfer and technology transfer from abroad into Vietnam as the total selling price of products or services created using the transferred technology, calculated based on the sales invoice minus the following items:

a) Business tax, special consumption tax, value-added tax;

b) Trade discount;

c) Full costs for purchasing semi-finished products, parts, components from any supplier;

d) Packaging costs, packaging costs, transportation costs, advertising costs.

Semi-finished products, parts, components, and costs mentioned in points c and d of this clause are determined in the Contract depending on the technology and type of product produced by the transferred technology.

10. "Date of license issuance" as stipulated in Article 811 of the Civil Code is the date when the competent authority approves the technology transfer Contract in accordance with Article 32 of this Decree.

Article 3. Conditions for Technology Transfer

Individuals, legal entities, or other subjects have the right to transfer technology as stipulated in Article 807 of the Civil Code when they meet the following conditions:

1. The transferring party is the lawful owner of the technology or has the right to transfer the right to use the technology.

2. The technology does not violate the provisions set forth in Article 5 of this Decree.

Article 4. Contents of Technology Transfer

Technology transfer includes:

1. Transfer of industrial property objects: patents, utility models, designs, and trademarks still within the protection period under Vietnamese law and permitted for transfer.

2. Transfer of technological trade secrets, knowledge in the form of technological solutions, technical solutions, technological processes, preliminary design documents, technical design documents, formulas, technical parameters, drawings, technical diagrams, computer software (transferred according to the technology transfer Contract), information about the transferred technology (hereinafter referred to as technical information) accompanied or not accompanied by machinery and equipment.

3. Transfer of rationalization solutions for production and technological innovation.

4. Implementation of service forms to support technology transfer so that the recipient can acquire technological capacity to produce products and/or services with quality specified in the Contract, including:

a) Assistance in selecting technology, guidance on installing equipment, trial operation of equipment chains to apply the transferred technology;

b) Technical management consulting, business management consulting, guidance on implementing transferred technical processes;

c) Training and enhancing the professional skills and management capabilities of workers, technical staff, and managers to master the transferred technology.

5. Machinery, equipment, technical means accompanying one or more of the contents mentioned in Clauses 1, 2, 3, and 4 of this Article.

Article 5. Technologies Not Permitted to Be Transferred

Technologies that cannot be transferred as stipulated in Article 808 of the Civil Code include:

1. Technologies that do not meet the requirements of Vietnamese laws on labor safety, occupational health, human health, and environmental protection.

2. Technologies that have adverse effects and cause negative consequences on Vietnamese culture, national defense, security, social order, and public safety.

3. Technologies that do not bring technical, economic, or social benefits.

4. Technologies serving the field of national security and defense without permission from the competent state authorities.

Article 6. Ensuring the Right to Use Industrial Property Objects Transferred Is Not Infringed Upon by Third Parties

The right to use transferred industrial property objects, if infringed upon by a third party, shall be handled in accordance with the law on industrial property.

Article 7. Rights to Develop Transferred Technology

1. The receiving party has the right to improve and develop transferred technology without notifying the transferring party, except where the parties have agreed otherwise in the Technology Transfer Contract.

2. The transfer of improvements and developments to the technology already transferred shall be carried out according to the agreement in the signed Contract or through a new Contract or supplementary Contract concluded by the parties to the technology transfer Contract on the principle of equality and mutual benefit.

 

PART II
TECHNOLOGY TRANSFER CONTRACTS

Article 8. Form of Contract

1. All technology transfer activities must be conducted based on a written technology transfer Contract (hereinafter referred to as the Contract) and comply with the provisions of this Decree. The Contract serves as the basis for the parties to fulfill their commitments, ensuring the legality of technology transfer, payment, and dispute resolution.

2. The contract may be established for the transfer of one or more technological contents specified in Article 4 of this Decree.

In cases where the transferring party transfers multiple technology contents to the receiving party, the transfer of these contents must be established in a single Contract.

In cases where the transferring party transfers technology along with machinery, equipment, technical means, the contract must include a list of such machinery, equipment, and technical means.

3. In contracts for the transfer of production line equipment or the transfer of complete equipment or equipment for an investment project if they contain technology transfer contents, the technology transfer part must be established as a separate section of the equipment import contract. Technology transfer costs must be calculated separately (not included in the equipment price).

4. In cases where there is already a contract and the transferring and receiving parties wish to supplement or change the contract contents, the parties must establish a supplementary contract according to the provisions of this Decree.

Article 9. Industrial Property Objects in Technology Transfer

5. In cases where the transferring party transfers ownership and usage rights to industrial property objects and other contents specified in Article 4 of this Decree to the receiving party, the part concerning the transfer of ownership and usage rights to these industrial property objects must be established as a separate section within the technology transfer contract.

The transfer of ownership and usage rights to industrial property objects in the technology transfer contract shall be governed by the laws on industrial property.

Article 10. Technology Transfer Contract for Research and Development Results and New Technology Deployment

1. The State encourages the transfer of research and development technology results that comply with the provisions of this Decree, based on protecting confidential information and trade secrets in accordance with Vietnamese law and international treaties to which Vietnam is a signatory and/or participant.

2. For the transfer of research and development technology results using state capital, in addition to complying with the provisions of this Decree, it must also follow the regulations on the use of state capital in scientific and technological activities.

3. The transferring and receiving parties of research and development technology results agree on the right to file applications for protection of industrial property objects, the method and level of remuneration for the author who created the research and development technology results.

4. In cases where the contract does not have an agreement on the right to file applications for protection of industrial property objects, the receiving party of new research and development technology results has the right to file an application for protection of industrial property rights over the new research and development technology results and must pay remuneration to the author when using the research and development technology results in accordance with the laws on industrial property.

Article 11. Contents of the Contract

The contract includes the following main contents:

1. Name and address of the transferring party and the receiving party:

Names, positions of representatives of both parties, bank account numbers of both parties.

Summary of the research and development activities or production and business results related to the transferred technology of the transferring party.

2. Definitions of concepts and terms used in the contract.

3. Content of the transferred technology:

a) Name of the technology;

b) Detailed description of the characteristics, content, safety, and labor hygiene of the transferred technology; in cases where the transferring party provides machinery and equipment along with other contents of the technology, the contract must clearly specify the list of machinery and equipment including technical features, model codes, country of manufacture, year of manufacture, quality status, prices.

c) Specific results achieved after the transfer (regarding product quality, service standards, economic and technical norms, productivity, environmental and social factors).

4. Content of the transfer of industrial property rights (if applicable) in accordance with the laws on industrial property.

5. Rights and responsibilities of the parties in implementing the technology transfer.

6. Time limit, progress, and location for providing technology and machinery/equipment.

7. Contents related to training and technical support to ensure the implementation of technology transfer, including:

a) Program content, form, field, number of trainees, experts from both parties, location, time frame;

b) Responsibilities of the parties in organizing training and technical support;

c) Level, quality, and results achieved after training and technical support;

d) Costs for training and technical support.

8. Price and payment:

a) Price, conditions, and payment methods (type of currency, location, deadline...);

b) In cases where the transferred technology includes multiple contents in the contract, each transfer content's payment portion and the payment price for the transfer of industrial property rights must be clearly stated;

c) During the contract execution period, if some contents of the contract are not implemented, the receiving party has the right to request adjustments to the payment.

9. Commitments of the parties regarding warranty and warranty period:

a) The transferring party commits to having legal rights for technology transfer;

b) The receiving party commits to strictly following the technical information provided by the transferring party;

c) Based on the receiving party's correct implementation of the transferring party's instructions, the transferring party is obligated to ensure the implementation of technology transfer to achieve the following results:

Achieving the goals set out in the contract;

The technology produces goods and services meeting the quality standards clearly defined in the contract;

The technology meets the economic and technical standards, raw material, fuel, and material consumption standards clearly defined in the contract;

The technology ensures compliance with environmental, labor safety, and hygiene laws.

d) Other commitments of the parties aimed at ensuring no errors occur during technology transfer and the use of results after the expiration of the contract's validity period;

e) Warranty and warranty period:

The transferring party is responsible for warranty of the transferred technology contents, including the quality of machinery and equipment (if provided by the transferring party) within the period agreed upon by both parties in the contract;

If the parties do not have another agreement, the warranty period is the duration of the contract's effectiveness.

During the warranty period, if the receiving party strictly follows the instructions of the delivering party and the product, goods, service, or technology does not meet the stipulated requirements, the delivering party must take corrective measures at its own expense.

10. Obligation to cooperate and exchange information among the parties.

11. Conditions for amending and terminating the Contract.

12. Duration of the Contract and conditions related to the parties in modifying the duration or ending the Contract.

13. Scope and extent of confidentiality obligations regarding the transferred technology.

14. Liability of each party in case of breach of commitments under the Contract.

15. Issues related to disputes arising from the Contract:

a) To be resolved according to the provisions of the Civil Code;

b) Form and procedure for resolving disputes;

c) Dispute resolution authority (judicial bodies, quality and price appraisal agencies of the transferred technology).

16. Date of establishment, place of establishment, full name and signature of the representatives signing the Contract for each party.

17. Detailed appendices to the terms of the Contract: Product list and product quality standards, training plan, technical support, file documentation list or related information. The above appendices are integral parts of the Contract.

In addition to the main contents mentioned above, the parties may agree on other terms in the Contract provided they do not contravene state regulations and Vietnamese laws.

Article 12. Language of the Contract

The technology transfer Contract and accompanying documents must be drafted in Vietnamese. In cases where one of the Contract parties is a foreign individual, legal entity, or organization, the Contract may also be drafted in a commonly used foreign language agreed upon by the parties. Vietnamese and foreign language versions of the Contract have equal legal validity.

Article 13. Provisions that cannot be included in the Contract

The following contents shall not be included in the Contract:

1. Compelling the receiving party to purchase or accept from the delivering party or a third party designated by the delivering party the following items:

a) Raw materials, materials;

b) Production aids: machinery, equipment, transportation means;

c) Intermediate products;

d) Simple labor;

e) Rights to use industrial property objects.

In cases where special guarantees concerning raw materials, materials, accessories, production aids, intermediate products, skilled personnel, or rights to use industrial property objects are required due to technological needs, these contents must be detailed explained and agreed upon by the parties.

2. Compelling the receiving party to accept certain limits (except in cases of transferring technology to fulfill processing contracts) on:

a) Production scale, quantity of products (or groups of products);

b) Product selling prices;

c) Designating sales agents for the receiving party, operating mechanisms, and relationships between the receiving party and these agents.

3. Restricting the market for product consumption, export markets, and export volumes and structures of product groups for the receiving party.

4. Prohibiting the receiving party from continuing research and development of the transferred technology or accepting similar technologies from other sources.

5. Compelling the receiving party to unconditionally transfer to the delivering party the right to use results of improvements and innovations made based on the transferred technology, the right to apply for protection of industrial property, ownership of industrial property, and other rights of such improvements and innovations.

6. Exempting the delivering party from liability for:

Errors in transferring technology;

Machinery and equipment supplied by the delivering party failing to meet quality requirements as specified in the Contract.

7. Prohibiting the receiving party from continuing to use the transferred technology after the expiration of the Contract (except for industrial property objects still within their protection periods in Vietnam).

If the parties agree that the receiving party will not continue using the transferred technology after the Contract's expiration, they must justify the reasonableness of this agreement, and the Contract must be approved by the competent technology transfer management authority (for Contracts requiring approval as stipulated in Clause 1 and 2 of Article 32 of this Decree).

Article 14. Effective date of the Contract

1. The effective date of the Contract is agreed upon by the parties. In cases where the Contract must be approved by an authorized body, the effective date of the Contract is calculated from the date of approval.

2. For Contracts that do not require approval but must be registered with the Ministry of Science and Technology and Environment as stipulated in Clause 3 of Article 32 of this Decree, the Contract becomes effective from the date of registration with the Ministry of Science and Technology and Environment.

3. If the Contract includes provisions on the transfer of industrial property objects, those provisions become effective from the date of registration with the competent state agency as prescribed by the law on industrial property.

Article 15. Duration of the Contract

1. The duration of the contract is the period during which the contract is effective.

The duration of the Contract is agreed upon by the parties based on the requirements and content of the transferred technology, but the maximum duration shall not exceed seven years from the effective date of the Contract.

2. If the parties agree on a Contract duration longer than that specified in Point 1 of this Article, the competent state authority may allow a duration exceeding seven years for the following cases, but not more than ten years:

a) The technology belongs to the world's advanced category and the transferring party commits to continuing to transfer improvements throughout the contract term;

b) The transferred technology has significant importance for economic and social development.

c) The transferred technology produces goods belonging to the world's new generation.

3. The duration of the transfer of ownership and use rights to industrial property objects is agreed upon in accordance with the laws on industrial property.

Article 16. Obligation to perform the Contract

The receiving party and the delivering party of the technology have the obligation to implement the agreements on rights and obligations of each party as stipulated in the Contract. If there is a violation of the agreed provisions, the violating party shall bear responsibility according to the breach provisions determined in the Contract.

Article 17. Dispute resolution method.

1. During the implementation of the contract, disputes between the parties shall first be resolved through negotiation and mediation.

2. In cases where the parties do not agree to resolve disputes through arbitration, the disputes will be brought before judicial bodies for resolution.

3. Disputes between Vietnamese organizations and individuals shall be resolved according to Vietnamese law at Vietnamese arbitration institutions or judicial bodies.

4. In cases of disputes arising from Contracts where one of the Parties is an individual, legal entity, or foreign organization, such disputes shall be resolved by arbitration institutions if the Parties have agreed in the Contract to resolve disputes through arbitration.

If the Parties have not agreed on resolving disputes through arbitration, the disputes shall be resolved by judicial authorities.

Article 18. Void Contract

1. The following Contracts for technology transfer shall be deemed entirely void:

a) The transferring party does not meet the conditions stipulated in Article 3 of this Decree;

b) Contracts involving technology that is prohibited from being transferred as stipulated in Article 5 of this Decree or contrary to other legal provisions;

c) Contracts that have not been registered, approved, or whose approval decisions have been revoked according to this Decree;

d) Contracts for technology transfer become void when the rights of ownership or use of industrial property objects related to the transferred technology are suspended or revoked at the time the Contract is signed (as provided by laws on intellectual property).

2. A contract is considered void in part when it contains provisions violating the law, but such violations do not affect the remaining parts of the contract.

Article 19. Legal Consequences of a Void Contract

1. When a contract is entirely void:

a) The parties may not perform the contract if it has not yet been performed;

b) If the contract is currently being performed, the parties must terminate its performance;

c) A wholly void Contract does not give rise to any rights or obligations of the Parties from the moment of establishment. The Party at fault must compensate for any losses caused.

2. When a contract is partially void:

a) The parties must agree to amend the contract according to the Civil Code and this Decree or cancel the portion deemed void in the contract;

b) If performing a partially void contract results in consequences similar to those of a wholly void contract, the provisions of Clause 1 of this Article shall apply.

Article 20. Amendment, Modification, or Partial Revocation of the Contract

Technology transfer contracts can be amended, modified, or partially revoked with the mutual consent of all parties.

For Contracts required to be approved under Article 32 of this Decree, amendments, modifications, replacements, or partial revocations of Contracts for technology transfer shall only take effect after obtaining the approval of the Contract approving authority through a supplementary approval decision.

Article 21. Termination of the Contract

1. The contract terminates in the following cases:

a) The contract expires according to the terms specified in the contract;

b) The contract is terminated prematurely by mutual written agreement between the parties;

c) Force majeure occurs and the parties agree to terminate the contract;

d) The Contract may be revoked or suspended by competent state agencies responsible for managing technology transfer due to violations of the law;

e) An effective Contract may be terminated by mutual agreement in writing between the Parties without causing damage to national interests and society; the Parties must bear responsibility for damages incurred by third parties related to the termination of the Contract;

For Contracts required to be approved, when terminated, the Parties must notify the approving authority of the Contract;

g) When one Party acknowledges a breach of the Contract or there is a conclusion by a competent state agency that a breach has occurred, the aggrieved Party has the right to unilaterally suspend the performance of the Contract.

2. In cases where the Contract is terminated pursuant to points a, b, and c of Clause 1 of this Article, the provisions regarding dispute resolution and complaints set forth in the Contract shall continue to be valid during the statute of limitations prescribed by law.

3. In cases where the Contract is terminated pursuant to points d, e, and g of Clause 1 of this Article, the breaching Party must compensate for losses caused by the breach of the Contract, except where the Contract provides otherwise.

Article 22. Inspection and Evaluation of the Contract

1. The transferring Party and the receiving Party must establish inspection and evaluation records for each stage of technology transfer, including:

Inspection and acceptance evaluation: machinery and equipment (if supplied by the transferring Party), (for machinery and equipment with strict safety requirements, registration and issuance of usage permits before formal operation are required), transferred technology prior to formal production;

Evaluation of the implementation of the Contract by the Parties according to the technological contents specified in each stage of the Contract;

Evaluation of the results achieved compared to the objectives set when the Contract ends.

These records must be submitted to the Contract approving authority within fifteen days from the date of completion of the evaluation.

2. During the term of the Contract, annually, the receiving Party must report on the results of technology transfer according to the Contract's contents to the Contract approving authority.

These reports and records must also be sent to the Ministry of Science and Technology.

 

CHAPTER III
PROVISIONS ON FINANCIAL MATTERS RELATED TO TECHNOLOGY TRANSFER

Article 23. Price of transferred technology

1. The price of machinery and equipment is determined through public tendering for procurement or quality and price appraisal.

2. Depending on the advancement of the technology, the content of the technology, the exclusivity of the technology, product quality, export ratio, economic and technical efficiency, social benefits, the Parties to the Contract agree on the payment price for technology transfer.

3. For technology transfer from abroad to Vietnam and domestic technology transfer, the payment price for technology transfer, including the objects listed in Article 4 of this Decree, excluding the value of accompanying machinery and equipment, must comply with one of the following limits:

a) From 0 to 5% of the net sales price of the product during the validity period of the Contract, or

b) From 0 to 25% of post-tax profit obtained from the sale of products produced or services using the transferred technology during the validity period of the Contract, or

c) From 0 to 8% of total investment capital in cases of capital contribution by the value of technology.

For projects operating under the Law on Foreign Investment, the value of capital contribution by technology shall not exceed 20% of the statutory capital.

4. For technology transfer from abroad to Vietnam and domestic technology transfer, the payment price for technology transfer, excluding the value of accompanying machinery and equipment, may reach up to 8% of the net sales price or up to 30% of post-tax profit, or in cases of capital contribution by the value of technology up to 10% of total investment capital for technology meeting the following criteria:

a) Transferred technology belongs to high-tech fields (according to the list published by the Ministry of Science and Technology in each period);

b) Transferred technology has significant importance for the socio-economic development of remote areas, mountainous regions, islands, and coastal areas;

c) A large portion of the products are exported, (or fees paid for technology are high for exported products).

Costs for meals, accommodation, travel, and salaries for trainees trained abroad may not be included within the percentage limits mentioned in Clause 3 of this Article.

For special technologies, if the approval for payment for technology transfer exceeds the above regulations, the Ministry of Science and Technology will seek directives from the Prime Minister.

5. The technology transfer price from Vietnam to foreign countries shall be agreed upon by the Parties in accordance with the laws of the receiving country and approved by the competent Vietnamese state management agency.

The Ministry of Science, Technology and Environment shall be responsible for providing detailed guidance on the payment levels mentioned in this Article.

Article 24. Payment Methods

Payment for technology transfer shall be agreed upon by the Parties according to the following methods:

1. Incorporating the full value of the transferred technology into the capital contribution in investment projects.

2. Paying in installments based on a percentage of post-tax profits or net sales price.

3. Making a lump-sum payment in one or more installments in cash or goods appropriate to the progress of technology transfer and in compliance with Vietnamese law regarding payment in kind. The lump-sum payment amount shall be determined based on Article 23 of this Decree.

4. Combining the payment methods specified in Clauses 1, 2, and 3 of this Article.

Article 25. 5. Agreeing on other payment methods or combining the payment methods specified in Clauses 1, 2, 3, and 4 of this Article.

For contracts that must be approved in accordance with Article 32 of this Decree, if the contract has not been approved by the competent state authority, it shall have no legal effect and the costs related to technology transfer shall not be recorded in the product cost.

Article 26. For technology transfer contracts from abroad into Vietnam and domestic technology transfer contracts required to be registered and confirmed according to this Decree, such contracts shall not have legal effect if they have not been registered and confirmed by the competent state agency and the receiving party has not accounted for the costs of technology transfer contents in the product cost.

The transferring Party shall be liable to pay taxes on the income derived from technology transfer activities. The rate of technology transfer tax shall be implemented in accordance with the provisions of the law.

Article 27. Administrative Fee for Contract Approval

When submitting an application for approval of a technology transfer contract, the applicant must pay an administrative fee to the competent state authority approving the contract as prescribed by the State.

 

PART IV
When submitting an application for registration of a technology transfer contract, the applicant must submit a review fee for the contract in accordance with the law.

Article 28. State management of technology transfer

State Management Content Regarding Technology Transfer Includes:

1. Issuing legal documents on technology transfer, organizing guidance and inspection of their implementation.

2. Appraising, approving, and registering technology transfer contracts, extending, amending, or suspending such contracts.

3. Designating organizations meeting the conditions stipulated by law to appraise the quality of equipment and means accompanying the transferred technology.

4. Formulating policies for importing machinery and equipment, organizing research and application of scientific and technological advancements in the field of technology transfer.

5. Promoting knowledge about technology transfer; providing information on technology.

6. Managing advisory activities on technology transfer, activities recognizing and certifying quality standards and technology processes and chains.

7. Inspecting and auditing technology transfer activities.

8. Resolving complaints and accusations and handling violations of technology transfer laws within their jurisdiction.

9. Creating favorable conditions for international cooperation in the field of technology transfer.

10. Formulating policies, strategies, and training staff on technology transfer.

Article 29. State Management Authority and Responsibilities of Ministries, Sectors, and Localities in Technology Transfer Activities

The Government shall uniformly manage state activities related to technology transfer nationwide, and depending on the functions, tasks, and authorities of ministries, agencies at the ministerial level, government agencies, provincial People's Committees under the central government, the Government shall assign responsibilities to each agency to assist the Government in implementing the state management functions prescribed in Article 28 of this Decree.

The assignment of tasks and authorities for state management of technology transfer activities to ministries, agencies at the ministerial level, government agencies, and localities is aimed at:

1. Enhancing the role and responsibility of ministries, agencies at the ministerial level, government agencies, provincial People's Committees under the central government in inspecting and supervising technology transfer activities and processes to ensure that transferred technologies and imported machinery and equipment in investment projects are advanced and modern, yielding economic benefits in production and business; promptly correcting errors and preventing losses to state assets and people; protecting people's health and living environment.

2. Ensuring centralized and unified management nationwide while reasonably assigning responsibilities in line with the capabilities and specialized technical expertise of each ministry, agency at the ministerial level, government agency, and locality. Each ministry, agency at the ministerial level, government agency, and provincial People's Committee under the central government shall be directly responsible to the Government within the scope of their assigned management.

Article 30. Responsibilities of Ministries, Sectors, and Localities

1. Responsibilities of the Ministry of Science, Technology and Environment:

a) The Ministry of Science, Technology and Environment is the functional agency assisting the Government in uniformly managing technology transfer activities nationwide as prescribed in Article 28 of this Decree;

b) Cooperating with relevant agencies to designate appraisal organizations as stipulated in Government Decree No. 86/CP dated December 8, 1995 on the division of responsibilities for state management of product quality to implement Clause 3 of Article 28 of this Decree;

c) Uniformly managing and guiding the implementation of policies and legal regulations on technology transfer activities. Cooperating with ministries, agencies at the ministerial level, government agencies, and provincial People's Committees under the central government in inspecting and supervising technology transfer activities and processes;

d) Managing advisory activities on technology transfer, activities recognizing and certifying quality standards and technology processes and chains;

e) Formulating policies, strategies, and training staff on technology transfer.

2. Responsibilities of ministries, agencies at the ministerial level, government agencies, and provincial People's Committees under the central government.

a) The Minister, Head of an agency at the ministerial level, government agency, and Chairman of a provincial People's Committee under the central government shall be responsible for:

Propose to the Government to issue or issue within its authority guidelines, policies, state management mechanisms for technology transfer activities in the respective fields and areas under their jurisdiction, adapting to a market economy to encourage organizations and individuals to quickly apply scientific, technological, and technical advancements to produce quality products meeting domestic and international market demands.

Manage technology transfer activities of investment projects and/or bidding projects within their approval authority and projects authorized by higher authorities to approve.

Approve technology transfer contracts classified according to Article 32 of this Decree.

Coordinate with the Ministry of Science and Technology and other competent agencies in inspecting, supervising, and evaluating the implementation of technology transfers within their jurisdiction.

b) For contracts required to be approved pursuant to Article 32 of this Decree, the Ministry of Finance shall direct financial and tax agencies at local levels to check the actual expenditure for technology transfer in accordance with the approved contracts, and implement financial regulations on technology transfer for enterprises.

c) The Ministry of Finance shall coordinate with the Ministry of Science and Technology in issuing regulations on fees for reviewing technology transfer contracts.

Article 31. Decision approving the contract

Technology transfer contracts referred to in Clause 1 and Clause 2 of Article 32 of this Decree must be approved by competent state agencies. The decision approving the contract shall be prepared according to a unified model guided by the Ministry of Science and Technology.

The agency issuing the approval decision has the right to revoke its own approval decision.

Article 32. Classification of Approval Authority for Contracts

1. The Ministry of Science and Technology shall examine, review, and approve the following types of contracts:

a) Technology transfer contracts from Vietnam to foreign countries;

b) Domestic technology transfer contracts that include the transfer of ownership and usage rights of industrial property objects where one party is a state organization or has state capital contributions;

c) Technology transfer contracts of enterprises operating under the Law on Foreign Investment in Vietnam. In cases where neither party to the contract has state capital contributions, the portion of the contract involving the transfer of ownership and usage rights of industrial property objects does not require approval. Contracts with a total payment value - excluding equipment value - equivalent to or less than US$30,000, and where the receiving party only has one technology transfer contract in the fiscal year, also do not require approval, but such contracts must be registered.

d) Technology transfer contracts belonging to investment projects decided by the Government or the Ministry of Planning and Investment.

2. Ministries, ministerial-level agencies, government agencies, provincial People's Committees, centrally governed city People's Committees, and other agencies (authorized to decide on investment according to the Investment and Construction Management Regulations issued by the Government) shall examine, review, and approve technology transfer contracts of investment projects using state funds within their authority (classified according to the Investment and Construction Management Regulations issued by the Government), but not covered by Clause 1 of this Article.

3. The following technology transfer contracts do not require approval but must be registered with the Ministry of Science and Technology:

Foreign technology transfer contracts into Vietnam not covered by Clause 1 and Clause 2 of this Article.

Domestic technology transfer contracts not covered by Clause 2 of this Article, with a value exceeding US$30,000.

4. Within fifteen days of the approval decision being made, ministries, ministerial-level agencies, government agencies, provincial People's Committees, and centrally governed city People's Committees shall send copies of the approval decisions for contracts to the Ministry of Science and Technology.

Ministries and provincial People's Committees have the responsibility to monitor the implementation of contracts they have approved.

The Ministry of Science and Technology shall guide procedures for registering technology transfer contracts as stipulated in this Article.

Article 33. Application for Approval of Contract Documents

Application for Approval of Contract Documents:

1. Request for Approval of Contract (according to the form prescribed by the Ministry of Science and Technology).

2. Technology transfer contract and accompanying appendices.

3. Explanation regarding the objectives and feasibility of implementing the technology, safety measures, and labor hygiene.

The explanation may be prepared by one of the parties involved, detailing the grounds for the contract, analyses, and calculations concerning the market, raw materials, technology, economics, finance, and the effectiveness of the technology.

4. Information about:

Legal status, representatives, confirmation of signatures of representatives of the parties to the contract, ownership rights, and other information about the parties to the contract such as: company name, address, guarantor, guarantee bank account, capital amount, and documentation certifying protected industrial property rights in Vietnam.

In cases where the party to the contract is a joint venture operating under the Law on Foreign Investment in Vietnam, the application for approval of the contract must include a document confirming that the technology transfer contract has been approved by the Board of Directors according to the principle of consensus.

Article 34. Procedures and Time Limit for Examining Applications for Approval of Contracts

1. Applications for approval of contracts shall be submitted to the approving authority as prescribed in Article 32 of this Decree.

2. Competent authorities specified in Article 32 of this Decree shall, within forty-five days from the date of receipt of complete and legally compliant applications, be responsible for reviewing and issuing a decision to approve technology transfer contracts.

In cases where the contract is not approved, the approving authority shall provide a written response within the time limit specified in Clause 2 of this Article, clearly stating the reasons.

3. In case the approving authority requires the Parties to provide additional documents or modify the contents of the Contract to comply with Vietnamese law, the Parties shall be obligated to fulfill such requirements within sixty days from the date of receipt of the request document. If these requirements are not met beyond this period, the application for approval will lose its validity.

This provision does not affect the right of the Parties to continue submitting applications for approval of the Contract.

4. The procedure for approving supplementary Contracts is similar to the procedure for approving the aforementioned Contracts. Within twenty days from the date of receiving a complete and compliant dossier with Vietnamese law, the approving authority must review and decide on the approval of the supplementary Contract. In case of non-approval of the supplementary Contract, the approving authority must inform the applicant in writing of the reasons.

5. The registration application dossier for the Contract is submitted to the Ministry of Science and Technology and Environment. If the dossier is complete, the Ministry of Science and Technology and Environment will issue a registration certificate for the Contract within seven days from the date of submission of the complete dossier.

6. The registration application dossier for the transfer of ownership or usage rights of industrial property objects is submitted to the National Office of Intellectual Property in accordance with the laws on intellectual property.

Article 35. Right to seek expert opinions

During the process of approving the Contract, Ministries, agencies at the level of Ministries, government agencies, provincial People's Committees, and municipal People's Committees directly under the central government have the right to seek opinions from specialized agencies and experts in relevant fields. Agencies and experts sought for opinions are responsible for providing honest, objective opinions and ensuring the confidentiality of related information.

Article 36. Complaints about the approval of Contracts

1. Within ninety days from the date the Minister of Ministries, Head of agencies at the level of Ministries, Heads of government agencies, Chairmen of provincial People's Committees, and municipal People's Committees directly under the central government issue the decision to approve or refuse to approve the technology transfer Contract, the Parties involved in the Contract, or third parties have the right to file complaints regarding the content of the approval decision or the refusal to approve the Contract to the Minister of Ministries, agency Heads at the level of Ministries, Heads of government agencies, and Chairmen of provincial People's Committees, and municipal People's Committees directly under the central government.

2. Within sixty days from the date of receipt of the complaint, the Minister of Ministries, Heads of agencies at the level of Ministries, Heads of government agencies, and Chairmen of provincial People's Committees, and municipal People's Committees directly under the central government are responsible for notifying the complainant of the resolution results.

3. In case of disagreement with the resolution result of the Minister of Ministries, Heads of agencies at the level of Ministries, Heads of government agencies, and Chairmen of provincial People's Committees, and municipal People's Committees directly under the central government, the Parties have the right to file complaints according to the laws on complaints and resolution of complaints or request resolution through administrative litigation procedures.

Article 37. Administrative violation handling concerning technology transfer

The handling of administrative violations concerning technology transfer is regulated by the Government in a separate Decree.

 

CHAPTER V
IMPLEMENTING PROVISIONS

Article 38. Transitional Provisions

1. Technology transfer Contracts approved by competent authorities before the effectiveness of this Decree continue to be valid.

2. Technology transfer Contracts that have not been approved, if containing contents inconsistent with the Civil Code and this Decree, must be adjusted to comply with the Civil Code and this Decree.

3. The Contracts specified in Clause 1 of this Article must be registered with the Ministry of Science and Technology and Environment within sixty days from the date this Decree becomes effective.

Article 39. Implementation clause.

Heads of Ministries, agencies at the level of Ministries, government agencies, Chairmen of provincial People's Committees, and municipal People's Committees directly under the central government are responsible for implementing this Decree.

The Minister of Science and Technology, the Minister of Finance, and Heads of related agencies shall guide the implementation of this Decree.

This Decree takes effect fifteen days from the date of signature. Previous regulations on technology transfer contrary to this Decree are abolished./.