Chương I Luật Chuyển giao công nghệ 2006 : Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Governing scope

This Law regulates technology transfer activities in Vietnam, from Vietnam to overseas, and from overseas to Vietnam; the rights and obligations of entities1 participating in technology transfer activities; the authority of State administrative bodies; and measures for encouragement and promotion of technology transfer activities.

Article 2. Applicable entities

This Law shall apply to Vietnamese entities, Vietnamese residing overseas, and foreign entities participating in technology transfer activities.

Article 3. Interpretation of terms

In this Law, the following terms shall be construed as follows:

1. Technical know-how means information accumulated and discovered during the process of research, production and business by the technology owner, which information is decisive for the quality and competitive capacity of the technology and technological products.

2. Technology means solutions, processes and technical know-how, whether attached or unattached to tools and facilities, used to convert resources into products.

3. High technology means technology with a high content of scientific research and technological development; which creates products and services with high quality and high added value; and which is capable of forming a new manufacturing or services industry or of modernizing an existing manufacturing or services industry.

4. New technology means technology created for the first time in Vietnam.

5. Progressive technology means technology of the first rank and of a higher technological standard than the standard of current technology of the same type.

6. Establishment fostering technology [and/or] establishment fostering technological enterprises means a place with favourable conditions in terms of infrastructure and supply of necessary services and assistance in order to foster technology [and/or] technological enterprises.

7. Technology markets, technology fairs and exhibitions, and technology transaction centres means places for the display and introduction of technology, for the purchase and sale of technology, for the promotion of technology transfer and for the provision of other technology transfer services.

8. Technology transfer means transfer to a transferee of the ownership right or the right to use either a part or the whole of a technology by the party with the right to transfer such technology.

9. Technology transfer in Vietnam means transfer of a technology between entities operating within the territory of Vietnam.

10. Technology transfer from overseas into Vietnam means an entity operating overseas transfers a technology to an entity operating within the territory of Vietnam.

11. Technology transfer from Vietnam to overseas means an entity operating within the territory of Vietnam transfers a technology to an entity operating overseas.

12. Technology transfer services means support activities during the process of seeking, entering into and performing technology transfer contracts.

13. Appraisal of technology means the activity of determining the standard, the value and the economic effectiveness of a technology and its socio-economic and environmental impact.

14. Valuation of technology means the activity of determining the price of a technology

15. Assessment of technology means the activity of inspecting and rating the specifications of transferred technology as compared to the specifications of such technology as stipulated in the technology transfer contract.

16. Technology transfer activities comprise both technology transfer and technology transfer services.

17. Technology transfer brokerage means the activity of assisting parties with technology and parties who need technology to other parties with whom to sign technology transfer contracts.

18. Technology transfer consultancy means the activity of assisting parties to select technologies and to negotiate, sign and perform technology transfer contracts.

19. Fostering technology means the activity of assisting the creation and perfection of technology which has the potential for practical application and commercialization from technological ideas or from results of scientific research and technological development.

20. Fostering technological enterprises means the activity of assisting entities to perfect technology, to raise investment capital, to organize production and business, to conduct marketing, to conduct legal procedures and providing other essential services in order to set up enterprises using newly created technology.

21. Promotion of technology transfer means the activity of promoting, creating and seeking opportunities for the transfer of technology; providing services of advertising, exhibiting and introducing technology; and organizing technology markets, technology fairs and exhibitions and technology services centres.

Article 4 Applicable law

1. Technology transfer activities must comply with the provisions of this Law and other relevant laws; in the case of specialized technology transfer activities as stipulated in another law, the provisions of such other law shall apply.

2. Where an international treaty of which the Socialist Republic of Vietnam is a member contains provisions different from those in this Law, then the provisions of such international treaty shall apply.

3. In the case of technology transfer activities with foreign elements, the parties may agree in the contract on the application of foreign law or international commercial practice, on condition that such foreign law or international commercial practice is not contrary to the fundamental principles of the law of Vietnam.

Article 5. State policy on technology transfer activities:

1. To secure the lawful interests of entities conducting technology transfer activities and to facilitate such entities in order to service the requirements for rapid and sustainable socio-economic development of the country.

2. To prioritize the development of high technology and progressive technology; to develop technological manpower simultaneously with investment in renovation of technology.

3. To strongly develop technology markets; to encourage and promote activities of fostering technology and fostering technological enterprises; to promote the conversion of research results into production and business.

4. To concentrate on improvement of the quality and effectiveness of technology transfer activities in rural areas and mountainous areas; to encourage and facilitate such activities in areas with difficult socio-economic conditions and areas with specially difficult socio-economic conditions.

5. To raise the effectiveness of international co-operation and to facilitate entities to engage in international co-operation during technology transfer activities.

Article 6. Contents of State administration of technology transfer activities:

1. To promulgate legal instruments on technology transfer and to organize their dissemination and implementation.

2. To formulate strategies, plans, programs, measures, regimes and policies for the promotion of technology transfer activities and for the renovation of technology, and to direct implementation of same.

3. To exercise uniform administration of technology transfer activities.

4. To conduct international co-operation regarding technology transfer activities.

5. To conduct checks and inspections of compliance with the law on technology transfer; to resolve complaints and denunciations, and to deal with breaches of the law on technology transfer.

Article 7. Technology objects which are eligible for transfer

1. Technology objects which shall be eligible for transfer shall be a part or the whole of the following technologies:

(a) Technical know-how;

(b) Technical information about technology shall be permitted to be transferred in the form of technological plans, technological processes, technical solutions, formulae, technical specifications, drawings, technical maps, computer programs and information files;

(c) Solutions for production optimization and for renovation of technology.

2. Technology objects shall be permitted to be transferred whether attached or unattached to industrial property objects.

Article 8. Right to transfer technology

1. A technology owner shall have the right to transfer the ownership or right to use such technology.

2. Any entity which is permitted by the technology owner to transfer the right to use such technology shall have the right to transfer the right to use such technology.

3. Any entity with technology being an industrial property object for which the term of protection has expired or which is not protected in Vietnam shall have the right to transfer the right to use such technology.

Article 9. Technologies the transfer of which is encouraged

A technology the transfer of which is encouraged means high technology or progressive technology which satisfies one of the following requirements:

1. It creates new products which are highly competitive.

2. It creates a new industry or new services.

3. It saves energy or raw materials.

4. It uses new energy resources or recycled energy.

5. It protects the health of humans.

6. It prevents or fights natural disasters or epidemics.

7. It results in clean production or is environmentally friendly.

8. It develops traditional crafts and industries.

Article 10. Technologies the transfer of which is restricted

Transfer shall be restricted in the case of a technology aimed at any one of the following objectives:

1. Protection of the national interest.

2. Protection of the health of humans.

3. Protection of national cultural values.

4. Protection of animals and plants, natural resources or the environment.

5. Implementation of a provision in an international treaty of which the Socialist Republic of Vietnam is a member.

Article 11. Technologies the transfer of which is prohibited:

1. A technology which fails to satisfy the requirements stipulated by the laws on occupational safety, labour hygiene, protection of human health, and protection of natural resources and the environment.

2. A technology which creates products causing harm to socio-economic development and having an adverse impact on national defence and security or social order and safety.

3. A technology not permitted to be transferred pursuant to a provision in an international treaty of which the Socialist Republic of Vietnam is a member.

4. A technology on the list of State secrets, unless a provision of law provides otherwise.

Article 12. Forms of transfer of technology

The transfer of a technology shall be permitted to be implemented via the following forms:

1. An independent technology transfer contract.

2. A section on technology transfer in the following projects or contracts:

(a) An investment project;

(b) A franchising contract;

(c) A contract transferring industrial property rights;

(d) A contract for purchase and sale of machinery or equipment to which the transfer of a technology is attached.

3. Other forms of transfer of technology as stipulated by law.

Article 13. Conduct strictly prohibited during technology transfer activities:

1. Taking advantage of technology transfer activities in order to cause harm to national defence and security interests, or to the lawful rights and interests of entities.

2. Destroying natural resources and the environment; causing harm to the health of the people, or to Vietnamese fine customs and ethics.

3. Transferring a technology on the list of technologies the transfer of which is prohibited; unlawfully transferring a technology on the list of technologies the transfer of which is restricted; transferring a technology when a clause in the technology transfer contract stipulates that transfer to a third party is not permitted.

4. Breaching the technology transfer right in terms of ownership and use of the technology.

5. Acting fraudulently during formulation and performance of a technology transfer contract or of a technology transfer services contract, or during preparation of a statistical report on technology transfers.

6. Impeding or refusing the supply of information about technology transfer activities relevant to the contents of a check or inspection by a competent State administrative body.

7. Taking advantage of one's duties or powers in order to seek a bribe or to cause difficulties, or failing to promptly implement requests in accordance with law from entities participating in technology transfer activities.

8. Disclosing technological secrets, or impeding technology transfer activities.

9. Other conduct which is strictly prohibited by the law on technology transfer.