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KPLC: Văn bản pháp luật Văn bản Tiếng Anh Decree No. 08/2013/ND-CP dated January 10, 2013 ______________________________________________________________________________

Decree No. 08/2013/ND-CP dated January 10, 2013

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Decree No. 08/2013/ND-CP dated January 10, 2013 of the Government on the administrative penalties for producing and trading counterfeit goods

THE GOVERNMENT
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No. 08/2013/ND-CP

SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness

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Hanoi, January 10th 2013

 

 

DECREE

ON THE ADMINISTRATIVE PENALTIES FOR PRODUCING AND
TRADING COUNTERFEIT GOODS

 

 

Pursuant to the Law on Government organization dated December 25th 2001;

Pursuant to the Criminal Code dated December 21st 1999 and the Law on amending and supplementing a number of articles of the Criminal Code dated June 29th 2009;

Pursuant to the Law on Commerce dated June 14th 2005;

Pursuant to the Law on Intellectual property dated November 29th 2005 and the Law on amending and supplementing a number of articles of the Law on Intellectual property dated June 19th 2009;

Pursuant to the Ordinance on Handling administrative violations dated June 02nd 2002 and the Ordinance on amending and supplementing a number of articles of the Ordinance on Handling administrative violations dated April 02nd 2008;

At the proposal of the Minister of Industry and Trade;

The Government issues a Decree on the administrative penalties for producing and trading counterfeit goods,

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Decree deals with the acts of administrative violations, the forms and rates of penalties, and the remedial measures applicable to the administrative violations, the procedures and authority to impose administrative penalties for acts of producing and trading counterfeit goods.

2. The goods within the scope of regulation of this Decree are the goods prescribed in Clause 2 Article 3 of the Law on Commerce 2005.

Article 2. Subjects of application

1. The Vietnamese organizations and individuals that produce and trade counterfeit goods within Vietnam’s territory.

2. The foreign organizations and individuals that produce and trade counterfeit goods within the Vietnam’s territory, unless otherwise prescribed by the International Agreements to which Vietnam is a signatory.

Article 3. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. “Producing counterfeit goods are doing one, some, or all the activities including manufacturing, publishing, printing, processing, ordering, preparing, processing, treating, extracting, recycling, assembling, mixing, dividing, filling, packing, and other activities to make counterfeit goods and put them into circulation.

2. “Trading counterfeit goods" are doing on, some, or all the activities including offering, displaying, introducing, advertising, promoting, storing, preserving, transporting, trading, exporting, importing, and other activities to put the counterfeit goods into circulation.

3. “Counterfeit stamps, labels, and packages” includes decals, goods labels, goods packages, quality stamps, warranty notes, goods seals, or other items of traders that contain fraudulent information specified in Clause 2 Article 4 of this Decree.

4. “Exhibits":

a) Finished or semi-finished counterfeit goods that have or have not put into circulation.

b) Materials, accessories, components, parts, additives, processing supplements, other raw materials, counterfeit stamps, labels, and packages used for producing counterfeit goods

5. “instruments for committing violations” include vehicles, tools, machinery, and other items used for producing and trading counterfeit goods.

Article 4. Types of counterfeit goods

1. The useless goods;

a) The useless goods; the goods of which the uses are not consistent with their nature, their names; the goods of which the uses are not consistent with the announced or registered ones.

b) The goods of which the amount of primary substances, nutrients, or other technical properties only reaches 70% or lower compared to the quality standards and technical regulations that have been registered, announced, or written on their labels or packages;

c) The medicines for humans and domestic animals that have no pharmaceutical substances, or the amount of pharmaceutical substances is not consistent with the registered one; or do not contain all the registered pharmaceutical substances, or contain other pharmaceutical substances than that written on their labels or packages.

b) The plant protection drugs that do not contain active ingredients, or the amount of active ingredient only reaches 70% or lower compared to the quality standards and technical regulations that have been registered or  announced, or does not contain all the registered active ingredients, or contain other active ingredients than that written on their labels and packages.

2. Goods using counterfeit labels and packages:

a) Goods using labels and packages that illegally assume the names and addresses of other traders; illegally assume the trademarks and brand names, the circulation registration codes, bar codes, or packages of other traders;

b) The goods of which the labels or packages contain fraudulent information about the origins, the places where goods are produced, packaged, and assembled.

3. The goods with fake intellectual property as prescribed in Article 213 of the Law on Intellectual property 2005.

4. Counterfeit stamps, labels, and packages.

Article 5. The application of forms of administrative penalties and remedial measures

1. Depending on the acts of violations, the nature and seriousness of the violations, and subjects of violations, the fines prescribed in this Decree shall be imposed as follows:

a) For trading counterfeit goods: From 100,000 VND to 70,000,000 VND;

b) For producing counterfeit goods: From 200,000 VND to 100,000,000 VND.

2. The confiscation of exhibits and instruments for committing violations prescribed in this Decree shall be applied in the following cases:

a) The exhibits prescribed in Point b Clause 4 Article 3 of this Decree;

b) The exhibits being the counterfeit goods of which the destruction would affect the environment, humans, animals, plants, social safety and order.

c) The exhibits being counterfeit goods of which the illegal elements on their labels or packaged is not removable, or the removal of the illegal elements might lead to further violations.

d) The export or re-export of exhibits from Vietnam is not impossible;

dd) The confiscation of instruments for committing violations shall be applied to the instruments used for directly producing and trading counterfeit goods, excluding the instruments for committing violations prescribed in Clause 2 Article 17 of the Ordinance on Handling administrative violations 2002, amended and supplemented in the Ordinance on amending and supplementing a number of articles of the Ordinance on Handling administrative violations 2008 (hereinafter referred to as the Ordinance), and Clause 2 Article 12 of the Government's Decree No. 128/2008/ND-CP dated December 16th 2008, detailing the implementation of a number of articles of the Ordinance (hereinafter referred to as the Decree No. 128/2008/ND-CP).

3. The temporary or indefinite revocation of the practice certificates or licenses in this Circular shall be applied as follows:

a) Only applicable to the violating organizations and individuals issued with practice certificates and licenses;

b) The temporary or indefinite revocation of the practice certificates or licenses in this Circular is specified in Article 16 of the Ordinance and Article 11 of the Decree No. 128/2008/ND-CP.

4. The remedial measures prescribed in this Decree shall be applied as follows:

a) Compelling the violating organizations and individuals to destroy the counterfeit goods as long as the destruction of such counterfeit goods does not affect the environment, humans, animals, plants, social safety and order;

c) Compelling the violating organizations and individuals to remove the illegal elements from their labels or packaged as long as the removal of the illegal elements does not lead to further violations.

c) Compelling the export or re-export of the imported counterfeit goods from Vietnam, as long as the violating organizations and individuals are able to take this measures.

d) Compelling the violating organizations and individuals to transfer the money illegally collected to the State budget, including the money collected from the production and trade of counterfeit goods;

dd) Compelling the destruction or removal of the illegal elements from the goods that have been sold and put into circulation by the violating organizations and individuals.

5. When applying the remedial measures prescribed in Clause 4 of this Article, the persons competent to impose penalties shall impose a reasonable deadline for the violating organizations and individuals to implement. If the measures are not implemented after the deadline written in the penalty decision, the implementation shall be enforced, or the decision on confiscation shall be made to handle the case as prescribed.

Article 6. The application of laws on imposing administrative penalties

1. Each violation committed by the organizations and individuals that produce and trade counterfeit goods shall be penalized separately in accordance with this Decree.

2. The penalty principle, the cases exempted from penalties; the mitigating and aggravating circumstances, the statute of limitations and limits for imposing penalties; the period considered without charge; the method of calculation of statute of limitations and time limit, the application of forms of penalties for administrative violations and remedial measures; the responsibility of person competent to impose administrative penalties for producing and trading counterfeit goods are specified in the Ordinance and the Decree No. 128/2008/ND-CP.

Article 7. Converting the documents of violations showing signs of crimes for criminal prosecution or vice versa

1. The documents about production and trade of counterfeit goods showing signs of crimes as prescribed by the Criminal Code 1999 and the Law on amending and supplementing a number of articles of the Criminal code 2009 shall be sent to criminal proceedings agencies for considering the criminal prosecution as prescribed in Article 62 of the Ordinance.

2. If the liable to criminal prosecution is cancelled, and the documents about the production and trade of counterfeit goods are converted for administrative penalties as prescribed in Article 63 of the Ordinance, the administrative penalties shall be imposed as prescribed in this Decree.

Chapter 2.

ACTS OF ADMINISTRATIVE VIOLATIONS , FORMS AND RATES OF PENALTIES

Article 8. Penalties for trading counterfeit useless goods;

1. The fines for trading counterfeit useless goods prescribed in Clause 1 Article 4 of this Decree:

a) Fines of from 500,000 VND to 1,000,000 VND when the value of an equivalent quantity of genuine goods reaches up to 1,000,000 VND;

b) Fines of from 1,000,000 VND to 3,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 1,000,000 VND to 3,000,000 VND;

c) Fines of from 3,000,000 VND to 5,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 3,000,000 VND to 5,000,000 VND;

d) Fines of from 5,000,000 VND to 10,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 5,000,000 VND to 10,000,000 VND;

dd) Fines of from 10,000,000 VND to 20,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 10,000,000 VND to 20,000,000 VND;

e) Fines of from 20,000,000 VND to 30,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 20,000,000 VND to under 30,000,000 VND;

g) Fines of from 30,000,000 VND to 50,000,000 VND when the value of an equivalent quantity of genuine goods exceeds 30,000,000 VND and do not constitute a criminal offence.

2. The fines in Clause 1 of this Article shall be doubled, but do not exceed 70,000,000 VND, in one of the following cases:

a) The counterfeit goods are foods, medicines, animal feed, fertilizers, veterinary medicines, pesticide, breeds of plants and animals, that do not constitute a criminal offence;

b) The counterfeit goods are food additives, cosmetics, medical equipment, cement, building steel, and helmets;

c) The counterfeit goods are imported, or the trader of counterfeit goods are the person that directly import such counterfeit goods.

3. Forms of additional penalties:

a) Confiscating the exhibits and instruments for committing violations, applicable to the violations prescribed in this Article;

b) Temporarily or indefinitely revoke the practice certificate or license, applicable to the recommitment of the violations prescribed in this Article, and to the trade of counterfeit goods prescribed in Points a and b Clause 2 of this Article.

c) Temporarily or indefinitely revoking the practice certificate or license, applicable to the recommitment of the trade of counterfeit goods prescribed in Points a and b Clause 2 this Article.

4. Remedial measures:

a) Compelling the destruction of counterfeit goods, applicable to the violations prescribed in this Article;

b) Compelling the export or re-export of counterfeit goods from Vietnam, applicable to the import of counterfeit goods prescribed in this Article;

c) Compelling the transfer of money collected from trading counterfeit goods to the State budget, applicable to the violations prescribed in this Article;

d) Compelling the recall and destruction of sold counterfeit goods that are in circulation, applicable to the violations prescribed in this Article;

Article 9. Penalties for producing counterfeit useless goods;

1. The fines for producing counterfeit useless goods prescribed in Clause 1 Article 4 of this Decree:

a) Fines of from 3,000,000 VND to 7,000,000 VND when the value of an equivalent quantity of genuine goods reaches up to 3,000,000 VND;

b) Fines of from 7,000,000 VND to 10,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 3,000,000 VND to 5,000,000 VND;

c) Fines of from 10,000,000 VND to 20,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 5,000,000 VND to 10,000,000 VND;

d) Fines of from 20,000,000 VND to 30,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 10,000,000 VND to 20,000,000 VND;

dd) Fines of from 30,000,000 VND to 40,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 20,000,000 VND to under 30,000,000 VND;

e) Fines of from 40,000,000 VND to 60,000,000 VND when the value of an equivalent quantity of genuine goods exceeds 30,000,000 VND and do not constitute a criminal offence.

2. The fines in Clause 1 of this Article shall be doubled, but do not exceed 70,000,000 VND, in one of the following cases:

a) The counterfeit goods are foods, medicines, animal feed, fertilizers, veterinary medicines, pesticide, breeds of plants and animals, that do not constitute a criminal offence;

b) The counterfeit goods are food additives, cosmetics, medical equipment, cement, building steel, and helmets.

3. Forms of additional penalties:

a) Confiscating the exhibits and instruments for committing violations, applicable to the violations prescribed in this Article;

b) Temporarily revoking the practice certificate or license, applicable to the recommitment of the violations prescribed in this Article;

c) Indefinitely revoking the practice certificate or license, applicable to the production of counterfeit goods prescribed in Clause 2 of this Article.

4. Remedial measures:

a) Compelling the destruction of counterfeit goods, applicable to the violations prescribed in this Article;

b) Compelling the transfer of money collected from the production of counterfeit goods to the State budget, applicable to the violations prescribed in this Article;

c) Compelling the recall and destruction of the sold goods in circulation, applicable to the violations prescribed in this Article.

Article 10. Penalties for trading goods using counterfeit labels and packages

1. The fines for trading goods using counterfeit labels and packages prescribed in Clause 2 Article 4 of this Decree:

a) Fines of from 200,000 VND to 1,000,000 VND when the value of an equivalent quantity of genuine goods reaches up to 1,000,000 VND;

b) Fines of from 500,000 VND to 2,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 1,000,000 VND to 3,000,000 VND;

c) Fines of from 2,000,000 VND to 3,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 3,000,000 VND to 5,000,000 VND;

d) Fines of from 3,000,000 VND to 5,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 5,000,000 VND to 10,000,000 VND;

dd) Fines of from 5,000,000 VND to 10,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 10,000,000 VND to 20,000,000 VND;

e) Fines of from 10,000,000 VND to 20,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 20,000,000 VND to under 30,000,000 VND;

g) Fines of from 20,000,000 VND to 30,000,000 VND when the value of an equivalent quantity of genuine goods exceeds 30,000,000 VND and do not constitute a criminal offence.

2. The fines prescribed in Clause 1 of this Article shall be doubled in one of the following cases:

a) The counterfeit goods are foods, medicines, animal feed, fertilizers, veterinary medicines, pesticide, breeds of plants and animals, that do not constitute a criminal offence;

b) The counterfeit goods are food additives, cosmetics, medical equipment, cement, building steel, helmet;

c) The counterfeit goods are imported, or the trader of counterfeit goods are the person that directly such counterfeit goods.

3. Forms of additional penalties:

a) Confiscating the exhibits and instruments for committing violations, applicable to the violations prescribed in this Article;

b) Temporarily revoking the practice certificate or license, applicable to the recommitment of the violations prescribed in this Article, and to the trade of counterfeit goods prescribed in Point a and b Clause 2 of this Article.

c) Indefinitely revoke the practice certificate or license, applicable to the recommitment of the trade of counterfeit goods prescribed in Points a and b Clause 2 this Article.

4. Remedial measures:

a) Compelling the removal of the illegal elements from the labels and packages of counterfeit goods, applicable to the violations prescribed in this Article;

b) Compelling the export or re-export of counterfeit goods from Vietnam, applicable to the import of counterfeit goods prescribed in this Article;

c) Compelling the transfer of money collected from trading counterfeit goods to the State budget, applicable to the violations prescribed in this Article;

d) Compelling the removal of illegal elements from the sold goods in circulation, applicable to the violations prescribed in this Article.

Article 11. Penalties for producing goods using counterfeit labels and packages

1. The fines for producing goods using counterfeit labels and packages prescribed in Clause 2 Article 4 of this Decree:

a) Fines of from 2,000,000 VND to 5,000,000 VND when the value of an equivalent quantity of genuine goods reaches up to 3,000,000 VND;

b) Fines of from 5,000,000 VND to 8,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 3,000,000 VND to 5,000,000 VND;

c) Fines of from 8,000,000 VND to 15,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 5,000,000 VND to 10,000,000 VND;

d) Fines of from 15,000,000 VND to 25,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 10,000,000 VND to 20,000,000 VND;

dd) Fines of from 25,000,000 VND to 35,000,000 VND when the value of an equivalent quantity of genuine goods reaches from over 20,000,000 VND to under 30,000,000 VND;

e) Fines of from 35,000,000 VND to 45,000,000 VND when the value of an equivalent quantity of genuine goods exceeds 30,000,000 VND and do not constitute a criminal offence.

2. The fines prescribed in Clause 1 of this Article shall be doubled in one of the following cases:

a) The counterfeit goods are foods, medicines, animal feed, fertilizers, veterinary medicines, pesticide, breeds of plants and animals, that do not constitute a criminal offence;

b) The counterfeit goods are food additives, cosmetics, medical equipment, cement, building steel, and helmets.

3. Forms of additional penalties:

a) Confiscating the exhibits and instruments for committing violations, applicable to the violations prescribed in this Article;

b) Temporarily revoking the practice certificate or license, applicable to the recommitment of the violations prescribed in this Article;

c) Indefinitely revoking the practice certificate or license, applicable to the production of counterfeit goods prescribed in Clause 2 of this Article.

4. Remedial measures:

a) Compelling the removal of the illegal elements from the labels and packages of counterfeit goods, applicable to the violations prescribed in this Article;

b) Compelling the transfer of money collected from the production of counterfeit goods to the State budget, applicable to the violations prescribed in this Article;

c) Compelling the removal of illegal elements from the sold goods in circulation, applicable to the violations prescribed in this Article.

Article 12. Penalties for trading counterfeit stamps, labels, and packages

1. The fines for trading counterfeit stamps, labels, and packages prescribed in Clause 4 Article 4 of this Decree:

a) Fines of from 100,000 VND to 200,000 VND when the quantity of counterfeit stamps, labels, and packages reaches 100 units;

b) Fines of from 200,000 VND to 500,000 VND when the quantity of counterfeit stamps, labels, and packages reaches from over 100 units to 500 units

c) Fines of from 500,000 VND to 1,000,000 VND when the quantity of counterfeit stamps, labels, and packages reaches from over 500 units to 1,000 units;

d) Fines of from 1,000,000 VND to 2,000,000 VND when the quantity of counterfeit stamps, labels, and packages reaches from over 1,000 units to 2,000 units;

dd) Fines of from 2,000,000 VND to 5,000,000 VND when the quantity of counterfeit stamps, labels, and packages reaches from over 2,000 units to 3,000 units;

e) Fines of from 5,000,000 VND to 10,000,000 VND when the quantity of counterfeit stamps, labels, and packages reaches from over 3,000 units to 5,000 units;

g) Fines of from 10,000,000 VND to 15,000,000 VND when the quantity of counterfeit stamps, labels, and packages reaches from over 5,000 units to 10,000 units;

g) Fines of from 15,000,000 VND to 20,000,000 VND when the quantity of counterfeit stamps, labels, and packages exceeds 10,000 units.

2. The fines prescribed in Clause 1 of this Article shall be doubled in one of the following cases:

a) The counterfeit stamps, labels, and packages are used for goods being foods, food additives, medicines, cosmetics, medical equipment, animal feed, fertilizers, veterinary medicines, pesticide, breeds of animals and plants, cements, building steel, and helmets;

c) The counterfeit stamps, labels, and packages are imported, or the trader of counterfeit goods are the person that directly import such counterfeit stamps, labels, and packages.

3. Forms of additional penalties:

a) Confiscating the exhibits and instruments for committing violations, applicable to the violations prescribed in this Article;

b) Temporarily revoking the practice certificate or license, applicable to the recommitment of the violations prescribed in this Article, and to the trade of counterfeit stamps, labels, and packages prescribed in Point a Clause 2 of this Article;

c) Indefinitely revoking the practice certificate or license, applicable to the recommitment of the trade of counterfeit stamps, labels, and packages prescribed in Point a Clause 2 of this Article.

4. Remedial measures:

a) Compelling the destruction of the counterfeit stamps, labels, and packages, applicable to the violations prescribed in this Article;

b) Compelling the transfer of the money collected from the trade of counterfeit stamps, labels, and packages to the State budget, applicable to the violations prescribed in this Article;

c) Compelling the recall and destruction of the counterfeit stamps, labels, and packages in circulation, applicable to the violations prescribed in this Article.

Article 13. Penalties for producing counterfeit stamps, labels, and packages

1. The fines for producing counterfeit stamps, labels, and packages prescribed in Clause 4 Article 4 of this Decree:

a) Fines of from 200,000 VND to 500,000 VND when the quantity of counterfeit stamps, labels, and packages reaches up to 100 units;

b) Fines of from 500,000 VND to 100,000 VND when the quantity of counterfeit stamps, labels, and packages reaches from over 100 units to 500 units;

c) Fines of from 1,000,000 VND to 2,000,000 VND when the quantity of counterfeit stamps, labels, and packages reaches from over 500 units to 1,000 units;

d) Fines of from 2,000,000 VND to 5,000,000 VND when the quantity of counterfeit stamps, labels, and packages reaches from over 1,000 units to 2,000 units;

dd) Fines of from 5,000,000 VND to 10,000,000 VND when the quantity of counterfeit stamps, labels, and packages reaches from over 2,000 units to 3,000 units;

e) Fines of from 10,000,000 VND to 15,000,000 VND when the quantity of counterfeit stamps, labels, and packages reaches from over 3,000 units to 5,000 units;

g) Fines of from 15,000,000 VND to 20,000,000 VND when the quantity of counterfeit stamps, labels, and packages reaches from over 5,000 units to 10,000 units;

g) Fines of from 20,000,000 VND to 30,000,000 VND when the quantity of counterfeit stamps, labels, and packages exceeds 10,000 units.

2. The fines prescribed in Clause 1 of this Article shall be doubled if the counterfeit stamps, labels, and packages are used for goods being foods, food additives, medicines, cosmetics, medical equipment, animal feed, fertilizers, veterinary medicines, pesticide, breeds of animals and plants, cements, building steel, and helmets;

3. Forms of additional penalties:

a) Confiscating the exhibits and instruments for committing violations, applicable to the violations prescribed in this Article;

b) Temporarily revoking the practice certificate or license, applicable to the recommitment of the violations prescribed in this Article, and to the production of the counterfeit stamps, labels, and packages prescribed in Clause 2 of this Article;

c) Indefinitely revoking the practice certificate or license, applicable to the recommitment of the production of the counterfeit stamps, labels, and packages prescribed in Point a Clause 2 of this Article.

4. Remedial measures:

a) Compelling the destruction of the counterfeit stamps, labels, and packages, applicable to the violations prescribed in this Article;

b) Compelling the transfer of the money collected from the production of counterfeit stamps, labels, and packages to the State budget, applicable to the violations prescribed in this Article;

c) Compelling the recall and destruction of the counterfeit stamps, labels, and packages in circulation, applicable to the violations prescribed in this Article.

Article 14. Penalties for producing and trading goods with counterfeit intellectual property

The regulations on the administrative penalties for the violations of intellectual property shall apply to the production and trade of On the administrative penalties for producing and trading goods with counterfeit intellectual property prescribed in Clause 3 Article 4 of this Decree.

Chapter 3.

PROCEDURE AND AUTHORITY TO IMPOSE ADMINISTRATIVE PENALTIES

Article 15. The procedure for imposing penalties

1. The procedure and time limit for imposing penalties, the procedure for converting documents of violations showing signs of crimes, converting documents of violations for administrative penalties, the implementation of decisions on administrative penalties are specified in the Decree No. 128/2008/ND-CP.

2. The authority and procedure for taking measures for enforcing the implementation of decisions on administrative penalties are specified in the Government's Decree No. 37/2005/NĐ-CP dated March 18th 2005, on the procedure for taking measures for enforcing the implementation of decisions on administrative penalties.

3. The penalties for administrative violations must be recorded and kept as prescribed by law.

4. The persons competent to impose administrative penalties shall announce the names, addresses of the penalized organizations and individuals producing and trading counterfeit goods, the kinds of counterfeit goods, the signs for recognizing counterfeit goods, the locations where counterfeit goods are found on their websites, or provide such information for the mass media.

Article 16. The authority to impose penalties of People’s Committees at all levels

The Presidents of the People’s Committees of communes, wards, towns; the Presidents of the People’s Committees of districts, and cities affiliated to central-affiliated cities and provinces, the Presidents of People’s Committees of central-affiliated cities and provinces are entitled to impose administrative penalties, in accordance with Article 28, 29, and 30 of the Ordinance, for the local production and trade of counterfeit goods prescribed in this Decree.

Article 17. The authority to impose penalties of the marker management agency.

1. The competent persons of the market management agency prescribed in Article 37 of the Ordinance are entitled to impose administrative penalties for the production and trade of counterfeit goods prescribed in Articles from 8 to 14 of this Decree.

2. The authority to impose administrative penalties in Clause 1 of this Article of market controllers:

a) Issue warnings;

b) Impose fines of up to 200,000 VND.

3. The authority to impose administrative penalties in Clause 1 of this Article of Leaders of Market management squads:

a) Issue warnings;

b) Impose fines of up to 5,000,000 VND.

c) Confiscate the exhibits and instruments for committing violations valued at up to 30,000,000 VND

d) Take the remedial measures applicable to the administrative violations prescribed in this Decree, except for the compelled export or re-export of counterfeit goods and exhibits.

4. The authority to impose administrative penalties in Clause 1 of this Article of Directors of Sub-Departments of Market management:

a) Issue warnings;

b) Impose fines of up to 20,000,000 VND.

c) Indefinitely or temporarily revoke the practice certificate or license, temporarily suspend the production and trade of illegal goods and services.

d) Confiscate the exhibits and instruments for committing violations;

dd) Take the remedial measures applicable to the administrative violations prescribed in this Decree.

5. The authority to impose administrative penalties in Clause 1 of this Article of Directors of Departments of Market management:

a) Issue warnings;

b) Impose fines of up to 70,000,000 VND.

c) Indefinitely or temporarily revoke the practice certificate or license, temporarily suspend the production and trade of illegal goods and services;

d) Confiscate the exhibits and instruments for committing violations;

dd) Take the remedial measures applicable to the administrative violations prescribed in this Decree.

Article 18. The authority to impose administrative penalties of the police, the customs, the Border guard, the Coastguard, and specialized inspectors

1. Chiefs of police of districts, chiefs of police divisions in charge of investigation into crimes against economic management and order, Directors of provincial police departments, Directors of police departments in charge of investigation into crimes against economic management and order are entitled to impose administrative penalties, in accordance with Article 31 of the Ordinance, for the production and trade of counterfeit goods prescribed in this Decree.

2. The competent persons of the Border guard, the Coastguard, and the customs are entitled to impose administrative penalties, in accordance with Article 32, 33, and 34 of the Ordinance, for the local export, import, and trade of counterfeit goods across the border prescribed in this Decree.

3. The competent persons of specialized inspection agencies are entitled to impose administrative penalties, in accordance with Article 38 of the Ordinance, for the local production and trade of counterfeit goods prescribed in this Decree.

Article 19. Valuating the exhibits of administrative violations

The valuation of exhibits and instruments for committing violations as the basis for the determination of the fine bracket  and the authority to impose penalties are specified in Article 34 of the Decree No. 128/2008/ND-CP, in particular:

1. The values of counterfeit goods prescribed in Point a Clause 4 Article 3 of this Decree are the market prices of the genuine goods that have the same technical features and use when the administrative violations are found as prescribed in Point d Clause 2 Article 34 of the Decree No. 128/2008/ND-CP. The Heads of the inspecting agency that discovers the administrative violations or handles the administrative violations shall organize the valuation in accordance with this Clause.

2. If the value is not able to be identified as prescribed in Clause 1 this Article, a valuation council shall be established as prescribed in Clause 3 Article 34 of the Decree No. 128/2008/ND-CP in order to valuate the counterfeit goods based on the priority prescribed in Clause 2 Article 34 of the Decree No. 128/2008/ND-CP.

3. The exhibits and instruments for committing violations prescribed in Point b Clause 4 and Clause 5 Article 3 of this Decree shall be valuated in accordance with Article 34 of the Decree No. 128/2008/ND-CP.

Article 20. Handling the exhibits and instruments for committing violations.

1. The exhibits and instruments for committing violations shall be handle in accordance with the Ordinance and the Decree No. 128/2008/ND-CP.

2. The violating organizations and individuals shall pay the cost of the recall, destruction, and removal of illegal elements when these measures are taken.

3. If the violating organizations and individuals fails to pay the cost of destruction, or the counterfeit goods are abandon, the State budget shall cover the cost of the destruction of counterfeit goods as prescribed.

Article 21. The prevention of administrative violations

This implementation of measures for preventing administrative violations and ensuring the administrative penalties for the production and trade of counterfeit goods are specified in the Ordinance and the Decree No. 128/2008/ND-CP.

Article 22. The management and use of the money collected from handling administrative violations

The management and use of the money collected from the administrative penalties for the production and trade of counterfeit goods, including fines, revenues from the sale of confiscated exhibits and instruments (if any) are prescribed by the Minister of Finance.

Chapter 4.

REGULATIONS ON THE IMPLEMENTATION

Article 23. Effects

1. This Decree takes effect on March 01st 2013.

2. The following regulations are annulled:

a) Clause 8 Article 3, Article 24, and Article 25 of the Government's Decree No. 06/2008/NĐ-CP dated January 16th 2008 on the penalties for administrative violations of commerce, amended and supplemented in the Government's Decree No. 112/2010/NĐ-CP dated December 01st 2010, amending and supplementing a number of articles of the Decree No. 06/2008/NĐ-CP;

b) Clause 6 Article 3, Article 7 and Article 10 of the Government's Decree No. 15/2010/NĐ-CP dated March 01st 2010, on the penalties for administrative violations of the production and trade of fertilizers;

b) Article 12 of the Government's Decree No. 06/2009/NĐ-CP dated January 22nd 2009, on the penalties for administrative violations of the production and trade of wine and tobacco;

d) Clause 28 Article 2 of the Government's Decree No. 33/2005/NĐ-CP dated March 15th 2005, detailing the implementation of a number of articles of the Ordinance on Veterinary Medicine;

dd) Point a, Point b, and Point d Clause 2 Article 23 of the Government's Decree No. 93/2011/NĐ-CP dated October 18th 2011, on the penalties for administrative violations of drugs, cosmetics, and medical equipment;

e) Point b Clause 4 Article 13, Point c Clause 6 Article 14, and Point c Clause 2 Article 17 of the Government's Decree No. 26/2003/NĐ-CP dated March 19th 2003 on the penalties for administrative violations of plant protection and quarantine;

g) Clause 3 Article 12 and Clause 3 Article 16 on the penalties for the forgery of labels of animal breeds in circulation that have been registered in the Government's Decree No. 47/2005/NĐ-CP dated April 08th 2005 on the penalties for administrative violations of animal breeds;

h) Clause 2 Article 3, Article 13, and Article 14 of the Government's Decree No. 08/2011/NĐ-CP dated January 25th 2011, on the penalties for administrative violations of animal feed;

j) Point b and Point c Clause 4 Article 16 of the Government's Decree No. 97/2007/NĐ-CP dated June 07th 2007 on the administrative penalties and enforcement of the administrative decisions of the customs, amended and supplemented in the Government's Decree No. 18/2009/NĐ-CP dated February 18th 2009, amending and supplementing a number of articles of the Decree No. 97/2007/NĐ-CP;

k) Other regulations of the Government on the counterfeit goods and the administrative penalties for the production and trade of counterfeit goods promulgated before this Decree takes effect.

Article 24. Transitional regulations.

1. The penalties for the acts of producing and trading counterfeit goods that have been recorded before this Decree takes effect shall comply with the Decrees on the penalties for administrative violations of relevant fields.

2. For the acts of producing and trading counterfeit goods that have been recorded before this Decree takes effect, but penalized after the effective date of this Circular, this Decree shall apply as long as the forms or rates of penalties in this Decree are heavier.

Article 25. Implementation responsibilities

1. The Minister of Industry and Trade shall guide and organize the implementation of this Decree.

2. The Minister of Finance shall preside and cooperate with the Ministry of Industry and Trade and relevant Ministries in specifying the implementation of Point d Clause 4 Article 5, Clause 3 Article 20, and Article 22 of this Decree.

3. The Ministers, Heads of ministerial-level agencies, Heads of Governmental agencies, the Presidents of People’s Committees of central-affiliated cities and provinces are responsible for the implementation of this Decree./.

 

 

FOR THE GOVERNMENT
THE PRIME MINISTER





Nguyen Tan Dung

 

 

YÊU CẦU DỊCH VỤ/TƯ VẤNLuat Khai Phong tu van
CÔNG TY LUẬT KHAI PHONG
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