Decree No. 49/2009/ND-CP on administrative sanctions for violations in technology transfer activities

DECREE

Regulations on administrative penalties for violations in technology transfer activities

______________________

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Based on the Law on Technology Transfer dated November 29, 2006;

Based on the Administrative Violation Handling Ordinance dated July 2, 2002, and the Ordinance amending and supplementing certain articles of the Administrative Violation Handling Ordinance dated April 2, 2008;

Considering the proposal of the Minister of Science and Technology,

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

1. This Decree stipulates acts of violation, forms of penalty, fine amounts, measures to remedy consequences, and the authority to impose administrative penalties for violations in technology transfer activities.

2. Administrative violations in technology transfer activities as specified in Chapter II of this Decree are intentional or negligent acts of agencies, organizations, individuals (hereinafter referred to collectively as organizations and individuals) that violate state management regulations in technology transfer activities which are not criminal offenses and must be subject to administrative penalties according to the law.

3. Acts of administrative violations related to technology transfer activities not specified in this Decree shall be governed by other Government regulations on administrative penalties in areas related to state management.

Article 2. Applicability

1. Vietnamese organizations and individuals, overseas Vietnamese, foreign organizations and individuals committing administrative violations in technology transfer activities within the territory of Vietnam shall be punished according to the provisions of this Decree and relevant laws.

2. In cases where civil servants, public officials, or employees commit violations of the law on technology transfer while performing their duties, they shall be dealt with according to the law on civil servants and public officials.

Article 3. Forms of administrative penalties and measures to remedy consequences in technology transfer activities

1. For each administrative violation in technology transfer activities, organizations and individuals must bear one of the following main forms of penalty:

a. Warning;

b. Fine;

c. Deportation of foreigners who commit administrative violations in technology transfer activities causing harm to national defense and security interests.

2. Depending on the nature and severity of the violation, organizations and individuals committing administrative violations in technology transfer activities may also be subject to one or more of the following supplementary forms of penalty:

a. Revocation of the Technology Transfer Permit; Registration Certificate for Technology Transfer Contracts;

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

3. In addition to the main forms of penalty and supplementary penalties mentioned above, organizations and individuals committing administrative violations in technology transfer activities may also be subject to one or more of the following remedial measures:

a. Compelling the implementation of measures to remedy environmental pollution and disease spread caused by the violation;

b. Compelling the removal from Vietnamese territory or re-export of products, equipment, and technologies related to the violation;

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

d. Other remedial measures prescribed in Chapter II of this Decree.

Article 4. Statute of limitations for administrative violations

1. The statute of limitations for administrative violations in technology transfer from abroad to Vietnam or from Vietnam to abroad is two years, counted from the date the violation was committed.

2. The statute of limitations for administrative violations in domestic technology transfer activities is one year, counted from the date the violation was committed.

Chapter II

ADMINISTRATIVE VIOLATIONS, FORMS OF SANCTIONS AND AMOUNTS OF FINES

Article 5. Acts of exploiting technology transfer activities to harm national defense interests, security, and the legitimate rights and interests of organizations and individuals

1. A fine of between 10,000,000 VND and 20,000,000 VND for acts of exploiting technology transfer activities to infringe upon the legitimate rights and interests of other organizations and individuals.

2. A fine of between 50,000,000 VND and 70,000,000 VND for acts of exploiting technology transfer activities to harm national defense interests and national security.

3. Deportation for foreigners committing violations as stipulated in Clause 2 of this Article.

4. Additional forms of administrative punishment:

a. Confiscation of objects and means used to carry out technology transfer for violations as stipulated in Clause 2 of this Article;

b. Revocation of the Technology Transfer Permit (if any) without time limit for violations as stipulated in Clause 1 and Clause 2 of this Article.

5. Measures to remedy consequences:

Forced re-export of imported products or destruction of products created from transferred technology for violations as stipulated in Clause 2 of this Article.

Article 6. Acts of transferring technology that cause adverse effects on human health, morality, and traditional customs of the nation

1. A fine of between 30,000,000 VND and 50,000,000 VND for one of the following acts:

a. Transferring technologies to produce products contrary to morality, not in accordance with the national identity, and traditional customs of the nation;

b. Transferring technologies causing adverse effects on human health;

c. Transferring technologies to produce products prohibited by Vietnamese law.

2. Additional forms of punishment:

Confiscation of objects and means used to carry out technology transfer for acts as stipulated in Clause 1 of this Article.

3. Measures to remedy consequences:

a. Forced destruction of products created from technology transfer as stipulated in Clause 1 of this Article.

b. Forced remediation of adverse health effects caused by the act stipulated in Point b, Clause 1 of this Article.

Article 7. Acts of transferring technology listed in the Prohibited Technology Transfer Catalogue, and illegal transfer of technology listed in the Restricted Technology Transfer Catalogue

1. A fine of between 30,000,000 VND and 50,000,000 VND for acts of transferring technology listed in the Restricted Technology Transfer Catalogue without a Technology Transfer Permit.

2. A fine of between 50,000,000 VND and 70,000,000 VND for acts of transferring technology listed in the Prohibited Technology Transfer Catalogue.

3. Additional forms of punishment:

Confiscation of objects and means related to the implementation of technology transfer acts violating the provisions of Clause 1 and Clause 2 of this Article.

4. Measures to remedy consequences:

Forced destruction of products created from transferred technology or forced removal from Vietnamese territory or forced re-export of products related to technology transferred from abroad to Vietnam (if any) violating the provisions of Clause 2 of this Article.

Article 8. Acts violating the rights to transfer technology regarding ownership and use of technology

||| 1. A fine of from 3,000,000 VND to 5,000,000 VND shall be imposed for any of the following acts:

a. Transferring technology to a third party when the technology transfer contract stipulates that it cannot be transferred to a third party.

b. Transferring technology which is the subject of industrial property rights protection without transferring such industrial property rights as prescribed by laws on intellectual property.

2. A fine of VND 5,000,000 to VND 10,000,000 shall be imposed for any of the following acts:

a. Transferring technology not owned by oneself.

b. Transferring technology when such technology does not fall within the scope of rights to transfer usage.

Article 9. Acts violating the establishment and implementation of technology transfer contracts and technology transfer service contracts

1. A fine of VND 5,000,000 to VND 10,000,000 shall be imposed for one of the following acts:

a. Signing a technology transfer contract included in the Restricted Technology Transfer List before obtaining approval from the competent state management agency.

b. Not separating the content and costs of technology transfer into a separate part in the investment project containing technology transfer content.

c. Not separating the content and costs of technology transfer into a separate part in trademark licensing contracts or in machine and equipment purchase contracts containing technology transfer content.

2. A fine of VND 20,000,000 to VND 30,000,000 shall be imposed for any of the following acts:

a. Fraudulently or deceitfully establishing a technology transfer contract to obtain a Technology Transfer Contract Registration Certificate or a Technology Transfer Permit.

b. Continuing to implement a technology transfer contract that has been suspended or canceled by a competent state management agency.

c. Implementing contents not in accordance with or beyond the scope of the Technology Transfer Permit already issued.

3. Additional forms of punishment:

a. Revoking indefinitely the right to use the Technology Transfer Contract Registration Certificate or Technology Transfer Permit for the act specified in point a, Clause 2, Article 9 herein.

b. Revoking the right to use the Technology Transfer Permit for a period of one to three months for the act specified in point c, Clause 2, Article 9 herein.

4. Measures to remedy consequences:

Compelling the separation of the content and costs of technology transfer into a separate part in the investment project or contract for the acts specified in points b and c, Clause 1, Article 9 herein.

Article 10. Acts violating the operation of technology transfer service businesses

1. Imposing a fine of VND 5,000,000 to VND 10,000,000 for operating technology transfer services not in accordance with the content recorded in the Technology Transfer Service Business Registration Certificate already issued.

2. Imposing a fine of VND 10,000,000 to VND 20,000,000 for operating technology transfer services without a Technology Transfer Service Business Registration Certificate.

3. Imposing a fine of VND 20,000,000 to VND 30,000,000 on organizations and individuals operating technology transfer services who commit fraud or deception in establishing and implementing technology transfer service contracts.

Article 11. Acts violating reporting requirements in technology transfer activities

1. A warning or a fine of VND 500,000 to VND 1,000,000 shall be imposed for any of the following acts:

a. Failing to submit reports on the implementation of technology transfer contracts and evaluation records of the results of technology transfer contract implementation for restricted technology transfer items to the competent state management agency as prescribed.

b. Failing to report to the science and technology management agency at the location where technology transfer is implemented when disseminating and organizing the transfer of agricultural, forestry, and aquatic product cultivation, preservation, and processing technologies in rural areas, mountainous regions, and economically disadvantaged areas.

2. Imposing a fine of VND 2,000,000 to VND 3,000,000 on organizations and individuals holding a Technology Transfer Contract Registration Certificate who fail to notify in writing the registration confirmation agency when canceling a technology transfer contract.

3. Measures to remedy consequences:

Compelling the submission of accurate and complete reports within the prescribed time limit for the act specified in point a, Clause 1, Article 11 herein.

Article 12. Acts violating obligations regarding the use and transfer of research and development results created with state budget funds

1. A warning or a fine from VND 500,000 to VND 2,000,000 shall be imposed on organizations granted ownership rights over technology created from state budget funds that violate the provisions on publicizing mechanisms and profit-sharing ratios as stipulated by laws on technology transfer.

2. A fine from VND 2,000,000 to VND 5,000,000 shall be imposed on organizations granted ownership rights over technology created from state budget funds but which improperly use or transfer such technology contrary to regulations.

3. A fine from VND 5,000,000 to VND 10,000,000 shall be imposed on organizations granted ownership rights over technology created from state budget funds where such research results must be used and transferred according to regulations but fail to do so.

4. Measures to remedy consequences:

a. Compel public disclosure of mechanisms and profit-sharing ratios as prescribed by laws on technology transfer for violations under Clause 1 of this Article.

b. Compel proper use and transfer of technology in accordance with regulations of competent state management agencies for violations under Clause 2 and Clause 3 of this Article.

Article 13. Acts violating policies encouraging the application, transfer, and innovation of technology

||| 1. A fine of from 3,000,000 VND to 5,000,000 VND shall be imposed for any of the following acts:

a. Improperly using allocated funds subsidized or supported by the National Technology Innovation Fund;

b. Failing to properly or fully implement commitments made to receive subsidies or support from the National Technology Innovation Fund.

2. A fine from VND 5,000,000 to VND 7,000,000 shall be imposed on acts of fraud or forgery to obtain benefits from policies encouraging and promoting technology transfer.

3. Measures to remedy consequences:

Compel repayment of subsidized or supported funds for violations under point a Clause 1 and Clause 2 of this Article.

Article 14. Acts obstructing persons performing inspection, examination, and administrative violation handling duties in technology transfer activities

1. A warning or a fine from VND 1,000,000 to VND 2,000,000 shall be imposed for any of the following acts:

a. Failing to present or presenting incomplete relevant documents, papers, data, and vouchers upon request of authorized persons;

b. Failing to report or providing reports and presenting documents but not in accordance with the content related to inspection, examination, and administrative violation handling.

2. A fine of VND 3,000,000 to VND 5,000,000 shall be imposed on any of the following acts:

a. Presenting forged documents, papers, data, and vouchers to authorized persons conducting inspections and examinations;

b. Disposing of evidence of violations being inspected or temporarily detained;

c. Unauthorized removal of seals on evidence of violations being sealed or temporarily detained;

d. Evading inspections or refusing to comply with inspection decisions contrary to regulations;

đ. Failing to implement or delaying implementation of requirements, conclusions, and decisions of state management agencies on science and technology or authorized persons conducting inspections;

e. Causing difficulties for inspection and examination activities.

Chapter III

AUTHORITY TO ISSUE ADMINISTRATIVE VIOLATION DECISIONS AND VIOLATION RECORDS

Article 15. Administrative penalty enforcement authority of specialized inspectors in science and technology

1. Specialized inspectors in science and technology have the authority:

a. To issue warnings;

b. To impose fines up to VND 500,000;

c. To confiscate items and means used for administrative violations valued up to VND 2,000,000;

d. To apply remedial measures as provided in points a and c Clause 3 Article 3 of this Decree;

2. The Chief Inspector of the Department of Science and Technology has the right:

a. To issue warnings;

b. To impose fines up to VND 30,000,000;

c. To revoke the right to use Technology Transfer Licenses, Technology Transfer Contract Registration Certificates;

d. To confiscate items and means used for administrative violations in technology transfer activities;

đ. To apply remedial measures as provided in points a, c, and d Clause 3 Article 3 of this Decree.

3. The Chief Inspector of the Ministry of Science and Technology has the authority:

a. To issue warnings;

b. To impose fines up to VND 70,000,000;

c. To revoke the right to use Technology Transfer Licenses, Technology Transfer Contract Registration Certificates;

d. To confiscate items and means used for administrative violations in technology transfer activities;

đ. To apply remedial measures as provided in points a, c, and d Clause 3 Article 3 of this Decree.

Article 16. Competence to impose administrative sanctions for violations of the Chairman of the People's Committee at the district level and the Chairman of the People's Committee at the provincial level

1. The Chairman of the People's Committee of a district-level city has the right:

a. To issue warnings;

b. To impose fines up to VND 30,000,000;

c. Confiscation of objects and means used to commit administrative violations in technology transfer activities;

d. Application of measures to remedy consequences as stipulated at points a, c, d, Clause 3, Article 3 of this Decree.

2. The Chairman of the People's Committee of a provincial-level city has the right:

a. To issue warnings;

b. To impose fines up to VND 70,000,000;

c. To revoke the right to use Technology Transfer Licenses, Technology Transfer Contract Registration Certificates;

d. To confiscate items and means used for administrative violations in technology transfer activities;

đ. Application of measures to remedy consequences as stipulated in Clause 3, Article 3 of this Decree.

Article 17. Competence to impose administrative sanctions for violations of the People's Public Security

The People's Public Security has the competence to impose sanctions according to the provisions of Article 31 of the Ordinance on Handling Administrative Violations against acts of administrative violations in technology transfer activities as specified in Articles 5, 6, and 7 of this Decree.

Article 18. Competence to impose administrative sanctions for violations of Customs, tax authorities, and other specialized inspection agencies

1. Customs and Tax Authorities have the right to impose sanctions according to the competence prescribed in Articles 34 and 36 of the Ordinance on Handling Administrative Violations against acts of administrative violations in technology transfer activities directly related to their management areas as prescribed in this Decree.

2. Other specialized inspection agencies have the competence to impose sanctions against acts of administrative violations in technology transfer activities as specified in Articles 5, 6, 8, Clause 1, Article 9, points a, c, Clause 2, Article 9, Articles 12, 13, and 14 of this Decree.

Chapter IV

IMPLEMENTING PROVISIONS

Article 19. Effective Date

1. This Decree takes effect from July 31, 2009.

2. This Decree replaces Decree No. 16/2000/NĐ-CP dated May 10, 2000 of the Government on handling administrative violations in the field of state management of technology transfer.

Article 20. Responsibilities for guidance and implementation

1. The Minister of Science and Technology shall be responsible for guiding the implementation of this Decree.

2. Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of provincial and centrally governed city People's Committees are responsible for implementing this Decree./.