Chương 5 Luật cạnh tranh 2004: Điều tra, xử lý vụ việc cạn tranh

Chapter V

INVESTIGATIONS AND DEALING WITH COMPETITION CASES

Section 1. GENERAL PROVISIONS

Article 56. Principles of competition legal proceedings

1. The resolution of competition cases concerning practices in restraint of competition shall be carried out in accordance with this Law.

2. The resolution of competition cases concerning unfair competitive practices shall be carried out in accordance with this Law and the laws on dealing with administrative offences.

3. During the course of competition legal proceedings, investigators, the head of the administrative body for competition and members of the Competition Council shall, within the scope of their respective responsibilities, maintain the confidentiality of the business secrets of enterprises and respect the lawful rights and interests of the organizations and individuals concerned.

Article 57. Spoken and written language used in competition legal proceedings

The written and spoken language used in competition legal proceedings shall be Vietnamese. Parties participating in competition legal proceedings shall have the right to use their native written and spoken language, and in such case an interpreter shall be required.

Article 58. Complaints about competition cases

1. Organizations and individuals considering that their lawful rights and interests have been infringed as a result of a breach of the provisions of this Law (hereinafter referred to as complainants) shall have the right to lodge a complaint at the administrative body for competition.

2. The time-limit for lodging a complaint shall be two years from the date on which the conduct indicating a breach of this Law was carried out.

3. A complaint file must contain the following main documents:

(a) Complaint application in the form issued by the administrative body for competition;

(b) Evidence of the offending practice.

4. Complainants shall be responsible for the truthfulness of the evidence that they submit to the administrative body for competition.

Article 59. Acceptance of jurisdiction over complaint files

1. The administrative body for competition shall be responsible to accept jurisdiction over complaint files.

2. Within a time-limit of seven working days from the date of receipt of a complaint file, the administrative body for competition shall be responsible to provide written notice to a complainant about acceptance of jurisdiction.

3. Complainants must pay provisional costs for dealing with competition cases in accordance with law.

Article 60. Evidence

1. Evidence means things which are true and are used by investigators and councils dealing with competition cases as grounds for determining whether or not a practice is in breach of this Law.

2. Evidence shall be determined from the following sources:

(a) Physical evidence, including things used as tools or means of breach, money and other things which have value in proving a breach of this Law;

(b) Declarations of witnesses and explanatory statements of organizations or individuals concerned;

(c) Original documents, or copies or translations of original documents which are notarized or lawfully certified or which are provided or authenticated by a competent body or organization;

(d) Expert conclusions.

Article 61. Application of administrative preventive measures

1. The head of the administrative body for competition and the chairman of the Competition Council shall have the right to apply a number of administrative preventive measures in accordance with the laws on dealing with administrative offences in the circumstances stipulated in clause 6 of article 76 and clause 4 of article 79 of this Law.

The Government shall provide specific regulations on administrative preventive measures which the head of the administrative body for competition and the chairman of the Competition Council have the right to apply.

2. The following persons shall have the right to recommend application of administrative preventive measures:

(a) A complainant shall have the right to make a recommendation to the head of the administrative body for competition or the chairman of the Competition Council;

(b) An investigator shall have the right to make a recommendation to the head of the administrative body for competition;

(c ) The chairman of an investigative hearing shall have the right to make a recommendation to the chairman of the Competition Council.

3. In the case of application of administrative preventive measures at the request of a complainant, the complainant shall be responsible to deposit a security sum in accordance with regulations of the Government.

In the event of incorrect application of administrative preventive measures causing loss to the party subject to investigation due to the fault of the complainant, the complainant must pay compensation. The amount of compensation shall be agreed by the complainant and the party subject to investigation; where the parties fail to reach an agreement, there shall be the right to institute court proceedings requesting compensation for loss in accordance with civil laws.

4. In the event of incorrect application of administrative preventive measures at the request of an investigator or the chairman of an investigative hearing causing loss to the party subject to investigation, the administrative body for competition or the Competition Council must pay compensation. The amount of compensation shall be agreed by the party subject to investigation and the administrative body for competition or the Competition Council; where the parties fail to reach an agreement, the party subject to investigation shall have the right to institute court proceedings requesting compensation for loss in accordance with civil laws. In this case, the administrative body for competition or the Competition Council must determine the liability, including material liability, of the applicant1 and of related persons in order that appropriate disciplinary action may be taken, and the administrative body for competition or the Competition Council shall be indemnified for the amount of compensation which has been paid to the party subject to investigation.

5. Any party against which administrative preventive measures are applied shall have the right to lodge a complaint about the decision on application of such measures in accordance with the laws on complaints and denunciations.

Article 62. Fees for dealing with competition cases

Fees for dealing with a competition case shall be used to conduct such case. The Government shall provide regulations on the rates, payment, management and use of fees for dealing with competition cases in accordance with the laws on fees and charges.

Article 63. Liability for payment of fees for dealing with competition cases

1. The party which is concluded to be in breach of this Law must pay the fees for dealing with the competition case.

2. If the party subject to investigation is not in breach of this Law, the complainant must pay the fees for dealing with the competition case.

3. In the case of an investigation into a competition case conducted pursuant to clause 2 of article 65 of this Law, if the party subject to investigation is not in breach of this Law, the administrative body for competition must bear the fees for dealing with the case.

SECTION 2. PARTICIPANTS IN COMPETITION LEGAL PROCEEDINGS ARTICLE 64 PARTICIPANTS IN COMPETITION LEGAL PROCEEDINGS PARTICIPANTS IN COMPETITION LEGAL PROCEEDINGS SHALL COMPRISE:

1. Complainant;

2. Party(ies) subject to investigation;

3. Lawyers;

4. Witnesses;

5. Experts;

6. Interpreters;

7. Persons with related interests and obligations.

Article 65. Party subject to investigation in competition case

A party subject to investigation in a competition case (hereinafter referred to as the party subject to investigation) means any organization or individual against which or whom the administrative body for competition issues a decision to investigate in the following circumstances:

1. A complaint is lodged against such party pursuant to article 58 of this Law;

2. The administrative body for competition discovers that such party has been or is currently conducting a practice with indications of a breach of the laws on competition within two years from the date on which the practice with indications of a breach of the laws on competition was conducted.

Article 66. Rights and obligations of parties

1. Parties subject to investigation shall have the following rights:

(a) To lead their own evidence and documents, and to know about2 the documents and evidence which the complainant or the administrative body for competition leads;

(b) To participate in investigative hearings;

(c) To request that an investigator or a member of a council dealing with a competition case be replaced if it is discovered that such investigator or member falls within one of the categories stipulated in article 83 of this Law;

(d) To authorize a lawyer to participate in the competition legal proceedings;

(dd) To request that a witness be invited;

(e) To propose that the administrative body for competition seek an expert opinion;

(g) To recommend replacement of the persons conducting and participating in the competition legal proceedings in accordance with this Law.

2. Complainants shall have the following rights:

(a) The rights stipulated in clause 1 of this article;

(b) To request the head of the administrative body for competition or the chairman of the Competition Council to apply administrative preventive measures relating to the competition case.

3. Parties subject to investigation and complainants shall have the following obligations:

(a) To provide fully, truthfully, accurately and promptly the necessary evidence relating to their claims or requests; Subscription 57 (1/2005-2006) 31 December 2005

(b) To attend in accordance with a summons issued by the administrative body for competition or the council dealing with the case. In the event of failure to attend without a legitimate reason despite service of a summons to attend, the council dealing with the case shall proceed to deal with the matter on the basis of the information available;

(c) To implement any decision of the administrative body for competition or the council dealing with the case.

Article 67. Lawyers for complainant and for party subject to investigation

1. Any lawyer who satisfies the conditions to participate in legal proceedings as stipulated by the laws on lawyers and is authorized by a complainant or by a party subject to investigation shall have the right to participate in competition legal proceedings in order to protect the lawful rights and interests of the party represented by such lawyer.

2. Lawyers shall have the following rights and obligations when they participate in competition legal proceedings:

(a) To participate in the stages of competition legal proceedings;

(b) To verify and collate evidence and to lead evidence in order to protect the lawful rights and interests of the represented party;

(c) To investigate documents in the file of a competition case and to copy by hand or photocopy necessary documents in such file in order to take action to protect the lawful rights and interests of the represented party;

(d) To request, on behalf of the represented party, replacement in accordance with this Law of a person conducting or persons participating in competition legal proceedings;

(dd) To assist the represented party with the laws relating to protection of the lawful rights and interests of such party;

(e) To respect the truth and the law; and not to bribe, compel or entice others to give false testimony or to provide false documents;

(g) To attend in accordance with a summons from the council dealing with the competition case;

(h) Not to disclose investigation secrets learned during the course of participation in competition legal proceedings; not to use documents copied from files of competition cases for the purpose of infringing the interests of the State or the lawful rights and interests of organizations and individuals.

Article 68. Witnesses

1. A council dealing with a competition case may summons as a witness a person with knowledge of circumstances relating to contents of a competition case, or the administrative body for competition may invite such person to act as a witness at the request of concerned parties. A person lacking civil capacity may not act as a witness.

2. Witnesses shall have the following rights and obligations:

(a) To provide all documents and other things in their possession relating to resolution of a competition case; to testify directly or in writing before the administrative body for competition or the council dealing with a competition case about all incidents relating to resolution of a competition case that they know;

(b) To participate in investigative hearings and to testify before the council dealing with a competition case;

(c) To be entitled to leave from work when summonsed by or providing evidence to the administrative body for competition or the council dealing with a competition case, if the witness works for a State body or for an organization or enterprise;

(d) To be entitled to travelling expenses and other regimes provided by law;

(dd) To be entitled to refuse to testify if the evidence of the witness involves State secrets, professional secrets or private life secrets, or if the testimony would adversely impact on or cause harm to the interests of a complainant or a party subject to investigation having a close relationship with the witness;

(e) To provide truthful testimony about all incidents relating to resolution of a competition case that they know;

(g) To pay compensation and to be responsible before the law for any false testimony causing loss to a complainant, to a party subject to investigation or to another person;

(h) To attend an investigative hearing in accordance with a summons issued by the council dealing with a competition case, if the testimony of such witness must be given publicly in the investigative hearing;

(i) To warrant to the administrative body for competition or the council dealing with a competition case that rights will be exercised and obligations will be discharged, except in cases where the witness is a minor.

3. Except in the cases stipulated in clause 2(dd) of this article, any witness who refuses to testify, who provides false testimony or documents, or who is summonsed by the council dealing with a competition case but fails to attend without a legitimate reason shall be liable in accordance with law.

4. Witnesses shall be protected in accordance with law.

Article 69. Experts

1. An expert means a person with essential knowledge in a sector in which expertise is required and who is called by the head of the administrative body for competition or the council dealing with a competition case, or whom the parties concerned suggest be called and the head of the administrative body for competition or the council dealing with the competition case so agrees in accordance with law.

2. Experts shall have the following rights and obligations:

(a) To read documents in the file of a competition case relating to the matter on which their expertise is sought; to request the body which called them to provide documents required for the provision of an expert opinion;

(b) To put questions to persons participating in the competition legal proceedings on issues relating to the matters on which their expertise is sought;

(c) To attend in accordance with a summons issued by the body calling them; to answer questions relating to the matters on which their expertise is sought and to provide their conclusions honestly and objectively and stating the grounds therefor;

(d) To notify in writing the body calling them if they are unable to act as an expert because the matters on which their expertise is sought are beyond their professional expertise or because the documents sent to them are inadequate or unable to be used as a basis for an expert opinion;

(dd) To preserve any documents received by them and to return [such documents]3 together with their conclusions to the body requesting expertise or a notice that they are unable to provide an expert opinion;

(e) Not to collate their own documents to provide an expert opinion, not to make private contact with other persons participating in the competition legal proceedings if such contact would affect the objectivity of the expert conclusion; not to disclose confidential information learned during the course of providing an expert opinion, and not to notify their expert conclusion to any person other than the person signing the decision calling the expert;

(g) In the case where a number of experts are called to provide a joint opinion, to provide their conclusions if they differ from that of the other experts provided in the joint opinion;

(h) To be entitled to travelling expenses and other regimes provided by law.

3. Any expert who refuses to provide his or her conclusion without a legitimate reason, whose conclusion contains false testimony, or who is summonsed by the body calling the expert but fails to attend without a legitimate reason shall be liable in accordance with law.

4. An expert shall refuse to act as an expert or shall be replaced in the following circumstances:

(a) He or she belongs to one of the categories stipulated in article 83 of this Law;

(b) He or she has already participated in the same competition case as a lawyer for one of the parties, as a witness or as an interpreter;

(c) He or she has already participated in the same competition case as a member of the council dealing with the competition case.

Article 70. Interpreters

1. An interpreter means a person with the ability to translate into the Vietnamese language from another language and vice versa in the case where a person participating in the competition case is unable to speak the Vietnamese language. Interpreters shall be selected by agreement between the parties concerned and approved by the council dealing with the competition case or shall be appointed by the council dealing with the competition case.

2. Interpreters shall have the following rights and obligations:

(a) To attend in accordance with a summons from the council dealing with the competition case;

(b) To interpret truthfully, objectively and correctly;

(c) To request additional explanation of matters to be interpreted from persons conducting and participating in the competition case;

(d) Not to make contact with other persons participating in the competition legal proceedings if such contact would affect the truthfulness, objectivity and correctness of their interpretation;

(dd) To be entitled to travelling expenses and other regimes provided by law;

(e) To warrant to the council dealing with the competition case that they will exercise their rights and discharge their obligations.

3. If an interpreter deliberately interprets incorrectly, or is summonsed by the council dealing with the competition case but fails to attend without a legitimate reason, he or she shall be liable in accordance with law.

4. An interpreter shall refuse to act as an interpreter or shall be replaced in the following circumstances:

(a) He or she belongs to one of the categories stipulated in article 83 of this Law;

(b) He or she has already participated in the same competition case as a lawyer for the complainant or the party subject to investigation, as a witness or as an expert;

(c) He or she has already participated in the same competition case as a member of the council dealing with the competition case.

5. The provisions in this article shall also apply to a person understanding the sign language of a deaf person or a dumb person participating in a competition case.

If the only person competent in the sign language of a deaf person or a dumb person participating in a competition case is the representative or relative of such deaf person or dumb person, the council dealing with the competition case may approve such representative or relative to act as interpreter for the deaf person or dumb person.

Article 71. Persons with related interests and obligations in competition cases

1. Persons with related interests and obligations may request to participate in competition legal proceedings independently or with the complainant or with the party subject to investigation.

2. A person with related interests and obligations who makes a request to participate in competition legal proceedings independently or with the complainant or who only has interests shall have the rights and obligations of the complainant stipulated in article 66 of this Law.

3. A person with related interests and obligations who participates in competition legal proceedings with the party subject to investigation or who only has obligations shall have the rights and obligations of the party subject to investigation stipulated in article 66 of this Law.

Article 72. Procedures for refusal to act as expert or interpreter and for request of replacement of expert or interpreter

1. Any refusal to act as an expert or interpreter or any request for replacement of an expert or interpreter prior to opening of an investigative hearing must be made in writing and shall specify the reasons therefor.

2. Any refusal to act as an expert or interpreter or any request for replacement of an expert or interpreter during an investigative hearing must be recorded in the minutes of the investigative hearing.

Article 73. Decision on replacement of expert or interpreter

1. Prior to opening of an investigative hearing, the chairman of the Competition Council shall make a decision on replacement of an expert or interpreter.

2. During an investigative hearing, the council dealing with the competition case shall make a decision on replacement of an expert or interpreter after hearing the opinions of the person proposed to be replaced and of other persons participating in the competition legal proceedings.

If an expert or interpreter must be replaced, the council dealing with the competition case shall issue a decision on adjournment of the investigative hearing, and the calling of another expert or interpreter shall be implemented in accordance with articles 69 and 70 of this Law.

Section 3. BODIES CONDUCTING COMPETITION LEGAL PROCEEDINGS AND PERSONS CONDUCTING COMPETITION LEGAL PROCEEDINGS

Article 74. Bodies conducting competition legal proceedings

Bodies conducting competition legal proceedings shall comprise the administrative body for competition and the Competition Council.

Article 75. Persons conducting competition legal proceedings

Persons conducting competition legal proceedings shall comprise members of the Competition Council, the head of the administrative body for competition, investigators, and secretaries to investigative hearings.

Article 76. Duties and powers of head of administrative body for competition when conducting competition legal proceedings

The head of the administrative body for competition shall have the following duties and powers when conducting competition legal proceedings:

1. To make decisions assigning investigators to specific competition cases;

2. To supervise the activities of an investigator of a competition case;

3. To make decisions on amendment or revocation of decisions of investigators conducting competition cases when the latter decisions are without grounds or contrary to law;

4. To make decisions on replacement of the investigator conducting a competition case;

5. To make decisions calling for expert opinions;

6. To make decisions on application, amendment or revocation of administrative preventive measures prior to transferring a file on a competition case to the Competition Council for resolution;

7. To make decisions on preliminary investigations, on stay of investigations, and on opening of an official investigation into a competition case within the authority of the administrative body for competition;

8. To invite witnesses at the request of parties during the investigative stage;

9. To sign conclusions of an investigation of a competition case when submitted by the assigned investigator;

10. To transfer files on competition cases to the Competition Council where such competition cases concern practices in restraint of competition;

11. To resolve complaints and denunciations within the authority of the administrative body for competition.

Article 77. Rights of investigators when conducting competition legal proceedings Investigators shall have the following rights when conducting competition legal proceedings:

1. To require organizations and individuals concerned to provide all necessary information and documents relating to the competition case;

2. To require the party subject to investigation to provide documents and/or explanatory statements relating to the case which is the subject of investigation;

3. To recommend that the head of the administrative body for competition seek an expert opinion;

4. To recommend that the head of the administrative body for competition apply administrative preventive measures relating to the competition case.

Article 78. Obligations of investigators when conducting competition legal proceedings Investigators shall have the following obligations when conducting competition legal proceedings:

1. To serve the decision to conduct an investigation as issued by the head of the administrative body for competition on the party subject to investigation;

2. To maintain the confidentiality of the business of enterprises;

3. To keep the documents provided in safe custody;

4. To conduct the investigation into the competition case as assigned by the head of the administrative body for competition;

5. To write a report upon completion of a preliminary investigation and official investigation into the competition case;

6. To be responsible to the head of the administrative body for competition and before the law for the exercise of their duties and powers.

Article 79. Duties and powers of chairman of Competition Council when conducting competition legal proceedings

1. To establish a council to deal with a competition case pursuant to clause 3 of article 54 of this Law;

2. To make decisions on replacement of members of a council dealing with a competition case, secretary to an investigative hearing, experts or interpreters prior to opening of an investigative hearing pursuant to clause 1 of article 73, article 83 and clause 1 of article 85 of this Law;

3. To make decisions on appointment of replacement members of a council dealing with a competition case or secretary to an investigative hearing pursuant to clause 2 of article 85 of this Law;

4. To make decisions on application, amendment or revocation of administrative preventive measures as from receipt of the file on a competition case.

Article 80. Councils dealing with competition cases

1. When resolving competition cases, councils dealing with competition cases shall act independently and shall obey the law only.

2. Any decision dealing with a competition case passed by the council dealing with such case shall be on the principle of a majority vote and, in the case of a tied vote, the decision shall be that of the side of the chairman of the investigative hearing.

Article 81. Duties and powers of chairman of investigative hearing

The chairman of an investigative hearing shall have the following duties and powers:

1. To arrange research into the file on a competition case;

2. On the basis of the decision of the council dealing with the competition case, to sign a recommendation to the chairman of the Competition Council to apply, amend or revoke administrative preventive measures; to make a decision on return of the file on a competition case to the administrative body for competition and to request an additional investigation; or to make a decision on suspension of dealing with a competition case;

3. On the basis of the decision of the council dealing with the competition case, to sign a decision on opening of an investigative hearing;

4. To make a decision on summons of persons to participate in the investigative hearing;

5. To sign and issue decisions on dealing with competition cases and other decisions of the council dealing with a competition case;

6. To conduct other activities within his or her authority in accordance with this Law when dealing with competition cases.

Article 82 Secretary to investigative hearing

1. A secretary to an investigative hearing shall have the following duties and powers:

(a) To prepare the necessary technical matters prior to opening of the investigative hearing;

(b) To disseminate the rules on investigative hearings;

(c) To report to the council dealing with the competition case on who is in attendance and who is not in attendance amongst the persons summonsed to attend;

(d) To prepare minutes of the investigative hearing;

(dd) To undertake other work assigned by the chairman of the investigative hearing.

2. A secretary to an investigative hearing must refuse to so act or shall be replaced if he or she belongs to one of the categories stipulated in article 83 of this Law.

Article 83. Cases of compulsory refusal by and replacement of investigators, members of councils dealing with competition cases, secretaries to investigative hearings, experts and interpreters

A member of a council dealing with a competition case, an investigator, the secretary to an investigative hearing, an expert or an interpreter must refuse to carry out their duties and shall be replaced in any of the following circumstances:

1. He or she is a relative of a complainant or of a party subject to investigation;

2. He or she is a person with rights or interests related to the competition case;

3. There are other clear grounds to demonstrate that he or she is not impartial in the exercise of his or her duties.

Article 84. Procedures for refusal to conduct proceedings or for replacement of members of councils dealing with competition cases or secretaries to investigative hearings

1. Any refusal to conduct proceedings or any request for replacement of a member of a council dealing with a competition case or the secretary to an investigative hearing prior to opening of an investigative hearing must be made in writing and shall specify the reasons therefor.

2. Any refusal to conduct proceedings or any request for replacement of a member of a council dealing with a competition case or the secretary to an investigative hearing during an investigative hearing shall be recorded in the minutes of the investigative hearing.

Article 85. Decision on replacement of members of councils dealing with competition cases or secretaries to investigative hearings

1. Prior to opening of an investigative hearing, the chairman of the Competition Council shall make a decision on replacement of a member of the council dealing with the competition case or of the secretary to the investigative hearing.

2. During an investigative hearing, the council dealing with the competition case shall make a decision on replacement of a member of such council or of the secretary to an investigative hearing after hearing the opinions of the person sought to be replaced and of other persons participating in the proceedings. The council dealing with the competition case shall deal with such matter in camera4 and shall reach a majority decision thereon.

If a member of the council dealing with the competition case or the secretary to an investigative hearing must be replaced, the council shall issue a decision on adjournment of the investigative hearing. The chairman of the Competition Council shall make a decision on the person to replace the member of the council dealing with the competition case or the secretary to an investigative hearing.

Section 4. INVESTIGATION OF COMPETITION CASES

Article 86. Preliminary investigation

A preliminary investigation of a competition case shall be conducted pursuant to a decision of the head of the administrative body for competition in the following circumstances:

1. After the administrative body for competition has accepted jurisdiction over a complaint file of a competition case;

2. After the administrative body for competition discovers there is an indication of a breach of the provisions of this Law.

Article 87. Time-limit for preliminary investigation

1. The time-limit for a preliminary investigation shall be thirty (30) days from the date of a decision to conduct a preliminary investigation.

2. Within the time-limit stipulated in clause 1 above, the investigator assigned to investigate the case must complete the preliminary investigation and make a recommendation to the head of the administrative body for competition to either issue a decision to conduct an official investigation or to stay the investigation.

Article 88. Decision to stay investigation or decision to conduct official investigation

The head of the administrative body for competition shall, based on the result of the preliminary investigation and the recommendation of the investigator, issue one of the following decisions:

1. A decision to stay the investigation if the results of the preliminary investigation reveal that there is no practice in breach of the provisions of this Law;

2. A decision to conduct an official investigation if the results of the preliminary investigation reveal that there are indications of a breach of the provisions of this Law.

Article 89. Contents of official investigation

1. In respect of an investigation of an agreement in restraint of competition, an abuse of dominant market position or monopoly position, or a case of economic concentration, the following issues shall be investigated:

(a) Verification of the relevant market;

(b) Verification of the relevant market share of the party subject to investigation;

(c) Collation and analysis of evidence of the practice in breach.

2. In respect of an unfair competition case, the investigator must identify the grounds for concluding that the party subject to investigation has engaged or is currently engaging in an unfair competitive practice.

Article 90. Time-limit for official investigation

The time-limit for an official investigation shall be provided for as follows:

1. The time-limit for an investigation of an unfair competitive case shall be ninety (90) days from the date of the decision to conduct an official investigation. In necessary cases, the head of the administrative body for competition may extend this time-limit, but not by more than sixty (60) days.

2. The official time-limit for an investigation of an agreement in restraint of competition, an abuse of dominant market position or monopoly position, or a case of economic concentration shall be one hundred and eighty (180) days from the date of the decision to conduct an official investigation. In necessary cases, the head of the administrative body for competition may extend this time-limit, but on not more than two occasions and each extension may not exceed sixty (60) days.

3. An investigator must notify any extension of the time-limit for an investigation to all parties concerned at least seven working days prior to expiry of the time-limit.

Article 91. Minutes of investigation

1. When conducting an investigation, the investigator must prepare minutes, specifying the location, dates and times when the investigation is conducted, the persons carrying out the investigation, the party subject to investigation, the contents being investigated, the complaints, and the requests of the party subject to investigation.

2. The investigator of a competition case must read out the minutes to the party subject to investigation prior to all of them signing the minutes.

3. Where the party subject to investigation refuses to sign the minutes, the investigator must record the refusal in the minutes and specify the reasons therefor.

Article 92. Request for witnesses during investigation

1. During the process of an investigation, the parties shall have the right to request that the administrative body for competition invite witnesses. The party requesting that a witness be invited shall be obliged to present the reasons why it is necessary to invite such witness in order that the administrative body for competition may make a decision.

2. The invitation letter for witnesses issued by the administrative body for competition shall specify the full name and place of residence of the invitee, the location and time for providing testimony, the parties and the subject matter of the case.

3. The testimony of the witness shall be minuted and read out by the investigator to the witness prior to both parties signing the minutes.

Article 93. Report on investigation

1. Upon completion of an investigation, the head of the administrative body for competition must send a report on the investigation together with the whole of the file on the competition case to the Competition Council.

2. A report on an investigation shall contain the following main particulars:

(a) Summary of the case;

(b) Features of the case and the evidence which was verified;

(c) Suggestions on measures for dealing with the case.

Article 94. Transfer of files on competition cases with indications of criminal offences

If indications of a criminal offence are identified during investigation of a competition case, the investigator must make an immediate recommendation to the head of the administrative body for competition to consider the transfer of the file to the State body with authority to institute a criminal prosecution.

Article 95. Return of file when no grounds for instituting criminal prosecution

If the State body with authority to institute a criminal prosecution considers that there are no grounds for instituting a criminal prosecution pursuant to the Criminal Procedure Code, such body shall return the file to the administrative body for competition to continue the investigation in accordance with this Law. The time-limit for an investigation stipulated in article 90 of this Law shall be calculated from the date of receipt of the returned file.

Article 96. .Additional investigation and time-limit for conducting additional investigation

1. The investigator of a competition case must conduct an additional investigation at the written request of the council dealing with the competition case.

2. The time-limit for conducting an additional investigation shall be sixty (60) days calculated from the date of the written request of the council dealing with the competition case.

Article 97. Responsibility to co-ordinate and assist with investigations

Local authorities, police authorities and other bodies and organizations shall be responsible to co-ordinate and assist with investigations at the request of the head

of the administrative body for competition.

Section 5. INVESTIGATIVE HEARINGS

Article 98..Competition cases which must be considered and dealt with by way of investigative hearing

Competition cases within the authority for resolution of the Competition Council must be considered and dealt with by way of an investigative hearing.

Article 99..Preparation for conducting investigative hearing

1. Upon receipt of the investigation report and the complete file of a competition case forwarded by the head of the administrative body for competition, the chairman of the Competition Council shall issue a decision on establishment of a council to deal with the competition case.

2. Within a time-limit of thirty (30) days from the date of receipt of the file on the competition case, the council dealing with the competition case must issue one of the following decisions:

(a) To conduct an investigative hearing;

(b) To return the file for additional investigation;

(c) To stay resolution of the competition case.

3. Within a period of fifteen (15) days from the date of a decision to conduct an investigative hearing, the council dealing with the competition case must open the investigative hearing.

4. Where the file has been returned for additional investigation, within fifteen (15) days from the date of receipt of the returned file5, the council dealing with the competition case shall issue one of the decisions stipulated in clause 2 of this article.

Article 100. Return of file for additional investigation

If the council dealing with the competition case considers that the evidence collected is insufficient to determine whether or not there has been a practice in breach of the provisions of this Law, it shall issue a decision returning the file and requesting additional investigation.

Article 101. Stay of resolution of case within authority for resolution of Competition Council

1. The council dealing with the competition case shall issue a decision to stay resolution of a case within the authority for resolution of the Competition Council in the following circumstances:

(a) Where the head of the administrative body for competition proposes a stay of resolution of a case because there is insufficient evidence to prove a practice in breach of the provisions of this Law and the council dealing with the competition case agrees that such proposal is legitimate;

(b) The parties subject to investigation have terminated voluntarily the practice in breach, remedied the consequences caused, and the complainant has withdrawn voluntarily the complaint;

(c) Where the investigation of the competition case is carried out in accordance with clause 2 of article 65 of this Law, the parties subject to investigation have terminated voluntarily the practice in breach and remedied the consequences caused, and the head of the administrative body for competition proposes a stay of resolution of the case.

2. The decision to stay resolution of a competition case shall be sent to the party subject to investigation, the complainant (if any) and the administrative body for competition.

Article 102. Decision to conduct investigative hearing

1. The decision to conduct an investigative hearing must be delivered to the parties stated in the decision no later than ten (10) days prior to opening of the hearing.

2. The decision to conduct an investigative hearing shall specify the following particulars:

(a) Party(ies) subject to investigation;

(b) Complainant, or administrative body for competition when the investigation of the competition case is conducted pursuant to clause 2 of article 65 of this Law;

(c) Specific articles and clauses of this Law being breached;

(d) Time and location where the investigative hearing is to be opened;

(dd) Whether the hearing is to be conducted in public or not in public;

(e) Full name of members of the council dealing with the competition case;

(g) Full name of the investigator who has already investigated the competition case and of the secretary of the investigative hearing;

(h) Full name of lawyers;

(i) Full name of interpreters;

(k) Full name of witnesses;

(l) Full name of experts;

(m) Any person with related rights and obligations.

Article 103. Summons to persons who must attend investigative hearing

The council dealing with the competition case shall, on the basis of the decision to conduct an investigative hearing, send a summons to persons who must attend such hearing no later than ten (10) days prior to opening of the hearing.

Article 104. Investigative hearing

1. An investigative hearing shall be conducted in public. If the matters investigated concern national security or business secrets, the investigative hearing shall be conducted in camera.

2. The following persons shall participate in a hearing:

(a) Members of the council dealing with the competition case and the secretary of the investigative hearing;

(b) Party(ies) subject to investigation;

(c) Complainant;

(d) Lawyers;

(dd) Investigator who has already investigated the competition case;

(e) Other persons as stated in the decision to conduct the investigative hearing.

3. After hearing the opinions of and the exchange of arguments by all participants, the council dealing with the competition case shall hold its own discussion and reach a majority decision by secret ballot.

Section 6. EFFECTIVENESS OF DECISION ON RESOLUTION OF COMPETITION CASE

Article 105. Decision on resolution of competition case

1. A decision on resolution of a competition case must contain the following main particulars:

(a) Summary of the facts of the case;

(b) Analysis of the case;

(c) Conclusion on how to deal with the case.

2. The chairman of the investigative hearing shall sign the decision on resolution of a competition case.

3. The decision on resolution of a competition case must be sent to the parties concerned within seven working days of the date of signing of such decision.

Article 106. Effectiveness of decision on resolution of competition case

A decision on resolution of a competition case shall become effective after thirty (30) days from the date of its signing, unless a complaint is lodged within such period pursuant to article 107 of this Law.

Section 7. DEALING WITH COMPLAINTS AGAINST DECISIONS ON RESOLUTION OF COMPETITION CASES WHICH HAVE NOT YET BECOME LEGALLY EFFECTIVE

Article 107. Complaining against decision on resolution of competition case

1. In the case of disagreement with a part or all of a decision on resolution of a competition case made by the council dealing with such case, the parties shall have the right to lodge a complaint with the Competition Council.

2. In the case of disagreement with a part or all of a decision on resolution of a competition case made by the head of the administrative body for competition, the parties shall have the right to lodge a complaint with the Minister of Trade.

Article 108. Complaint against decision on resolution of competition case

1. A complaint against a decision on resolution of a competition case must contain the following main particulars:

(a) Full date of the complaint;

(b) Name and address of the complainant;

(c) Number and full date of the decision on resolution of the competition case which is the subject of complaint;

(d) Reasons for the complaint and requests of the complainant;

(dd) Signature and seal (if any) of the complainant.

2. A complaint must be lodged with the body which issued the decision on resolution of the competition case, together with any additional evidence proving that there are grounds for the complaint and the complaint is legal.

Article 109. Acceptance of jurisdiction over complaint against decision on resolution of competition case Within a time-limit of five working days from the date of receipt of a complaint against a decision on resolution of a competition case, the body which issued the decision must verify the validity of the complaint pursuant to article 108 of this Law.

Article 110 Consequences of complaint against decision on resolution of competition case

1. Any part of a complaint against a decision on resolution of a competition case which is the subject of complaint shall not be transferred for enforcement.

2. Within a time-limit of fifteen (15) days from the date of receipt of a complaint against a decision on resolution of a competition case, the body which accepted jurisdiction to resolve the complaint shall consider it and then transfer the complaint, the whole of the file on the competition case and the recommendations of such body to the Competition Council or to the Minister of Trade in accordance with the provisions of article 107 of this Law.

Article 111. Time-limit for resolution of complaint against decision on resolution of competition case

Within a time-limit of thirty (30) days from the date of receipt of a complaint file, the Competition Council or the Minister of Trade shall be responsible to resolve the complaint in accordance with their authority. In especially complex cases, this time-limit may be extended but not for more than thirty (30) days.

Article 112. Powers of Competition Council when resolving complaint against decision on resolution of competition case by council dealing with competition case

When the Competition Council considers resolution of a complaint against a decision on resolution of a competition case by a council dealing with a competition case, the Competition Council shall have the following rights:

1. If it considers that there are insufficient grounds for the complaint, to uphold the original decision;

2. If it considers that the original decision was not correct in accordance with law, to amend a part or the whole of the original decision;

3. To revoke the original decision and transfer the file on the competition case to the council dealing with it for reconsideration in the following circumstances:

(a) Evidence has not been sufficiently collected and verified;

(b) Membership of the council did not comply with the provisions of this Law or there was some other serious breach of the provisions on competition legal proceedings.

Article 113. Powers of Minister of Trade when resolving complaint against decision on resolution of competition case by administrative body for competition

When the Minister of Trade considers resolution of a complaint against a decision on resolution of a competition case made by the administrative body for competition, the Minister of Trade shall have the rights stipulated in clauses 1 and 2 of article 112 of this Law; and if evidence has not been sufficiently collected and verified, the Minister of Trade shall have the right to revoke the original decision and request that the administrative body for competition reconsider its original decision in accordance with the procedures stipulated in this Law.

Article 114. Effectiveness of decision on resolution of complaint

A decision on resolution of a complaint against a decision on resolution of a competition case shall be legally effective as from the date of its signing.

Article 115. Instituting proceedings in relation to decision on resolution of complaint

1. If any party concerned disagrees with a decision on resolution of a complaint against a decision on resolution of a competition case, such party shall have the right to institute administrative proceedings with respect to a part or the whole of such decision at the people's court of a province or city under central authority which has jurisdiction.

2. If a court accepts jurisdiction over proceedings as stipulated in clause 1 of this article, the Minister of Trade or the chairman of the Competition Council shall be responsible to direct that the file on the complaint against the decision on resolution of a competition case must be transferred to the court within a time-limit of ten (10) working days from the date of receipt of a request from the court.

Article 116. Consequences of instituting proceedings

Any part of a decision on resolution of a competition case which is not the subject of court proceedings shall continue to be transferred for enforcement.

Section 8. DEALING WITH BREACHES OF LAWS ON COMPETITION

Article 117. Forms of penalties to be imposed for breaches of laws on competition and measures for remedying consequences

1. For each practice in breach of the laws on competition, the individual or organization in breach must be subject to one of the following main forms of penalty:

(a) A warning;

(b) A fine.

2. Depending on the nature and seriousness of the breach, one or more of the following additional forms of penalty may also be applied to an individual or organization in breach of the laws on competition:

(a) Withdrawal of business registration certificate; revocation of the right to use a licence or practising certificate;

(b) Confiscation of exhibits and facilities used to commit the breach of the laws on competition.

3. In addition to the forms of penalty stipulated in clauses 1 and 2 of this article, one or more of the following measures for remedying consequences may also be applied to an individual or organization in breach of the laws on competition:

(a) Restructure of an enterprise which abuses its dominant market position;

(b) Division or separation of enterprises which merged or consolidated; compulsory re-sale of that part of an enterprise which was acquired;

(c) Public rectification;

(d) Removal of illegal terms and conditions from a contract or business transaction;

(dd) Other measures necessary to remedy the effects of the restraint on competition caused by the practice in breach.

4. Where a practice in breach causes loss to the interests of the State or to the lawful rights and interests of other individuals or organizations, compensation must be paid for such loss in accordance with law.

Article 118. Level of fines for breach of laws on competition

1. A body authorized to impose penalties may impose a fine up to no more than ten (10) per cent of the total turnover of the organization or individual in breach in the financial year preceding the year in which the prohibited practice took place where the breach involves an agreement in restraint of competition, an abuse of dominant market position or monopoly position, or an economic concentration.

2. The body authorized to impose penalties shall deal with unfair competitive practices and other conduct in breach of this Law outside the cases stipulated in clause 1 of this article in accordance with the laws on dealing with administrative offences or in accordance with relevant laws.

3. The Government shall provide detailed regulations on the level of fines applicable to practices in breach of this Law.

Article 119. Authority to impose fines and deal with breaches of laws on competition

1. A council dealing with a competition case and the Competition Council shall have the following powers:

(a) To issue a warning;

(b) To impose a fine as stipulated in clause 1 of article 118 of this Law;

(c) To confiscate exhibits and facilities used to commit the breach of the laws on competition;

(d) To apply the measures stipulated in sub-clauses (c), (d) and (dd) of clause 3 of article 117 of this Law;

(dd) To request the competent State body to withdraw the business registration certificate or to revoke the right to use a licence or practising certificate;

(e) To request the competent State body to apply the measures stipulated in sub-clauses (a) and (b) of clause 3 of article 117 of this Law.

2. The administrative body for competition shall have the right to apply the measures stipulated in sub-clause (a) of clause 1, sub-clause (b) of clause 2 and sub-clause (c) of clause 3 of article 117 and clause 2 of article 118 of this Law.

3. Other bodies authorized to impose penalties for unfair competitive practices relating to intellectual property shall do so in accordance with the laws on dealing with administrative offences.

Article 120. Dealing with breaches by State employees and officials

Any State employee or official who commits a breach of the laws on competition shall, depending on the nature and seriousness of the breach, be disciplined or be subject to criminal prosecution; and if loss is caused, he or she must pay compensation for it in accordance with law.

Article 121. Enforcement of decisions on resolution of competition cases

1. After a time-limit of thirty (30) days from the date of effectiveness of a decision on resolution of a competition case, if one of the parties fails to implement voluntarily the decision and has not instituted proceedings before the court pursuant to Section 7 of this Chapter, the judgment creditor shall have the right to lodge a request with a competent State administrative body to enforce the decision pursuant to the functions, duties and powers of such body.

2. If the decision on resolution of the competition case relates to assets of a judgment debtor, the judgment creditor shall have the right to request the civil judgment enforcement office of the city or province under central authority where the judgment debtor has its head office or resides or where there are assets of the judgment debtor to enforce the decision on resolution of the competition case.