Chương II Luật Trồng trọt 2018: Giống cây trồng

Chapter II

PLANT VARIETIES

Section 1. RESEARCH, EXPLOITATION, USE AND CONSERVATION OF CROP GENETIC RESOURCES

Article 10. Research on selection, generation of and technology transfer regarding crop genetic resources

1. Conducting researches on selection, generation and technology transfer regarding crop genetic resources in accordance with legislative regulations on science and technology, technology transfer and biodiversity.

2. Prioritizing researches in selection and generation of crop genetic resources as prescribed in points a and b of clause 2 of Article 6 herein.

Article 11. Exploitation and utilization of crop genetic resources

1. Crop genetic resources shall include genetic resources already granted or endorsed by circulation recognition decisions or permission for circulation self-declaration; plant varieties which have been prevalent in crop production activities, specialty plant varieties, indigenous plant varieties and/or imported plant varieties which have not yet been granted circulation recognition decisions or permission for circulation self-declaration.

2. The exploitation and utilization of crop genetic resources shall be subject to the provisions of this Law and the legislation on biodiversity.

Article 12. Conservation of crop genetic resources

1. Conservation of crop genetic resources shall be comprised of the following activities:

a) Inspecting, collecting, retaining and building banks of crop genetic resources;

b) Decoding genes, evaluating agronomic and biological indicators and useful value of crop genetic resources;

c) Establishing and sharing data, documentary information systems and crop genetic resources.

2. The Government shall adopt detailed regulations on the conservation of crop genetic resources and shall promulgate the nomenclature of crop genetic resources prohibited from export.

Section 2. RECOGNITION OF CIRCULATION AND SELF-DECLATION OF CIRCULATION OF PLANT VARIETIES

Article 13. General requirements concerning recognition of circulation and self-declaration of circulation of plant varieties

1. Plant varieties belonging to the main plant species may be produced, traded, exported or imported only after being granted the decision on recognition of plant variety circulation as provided for in Article 15 hereof, or granted the Decision on recognition of privileged circulation of plant varieties as provided for in Article 16 hereof, except in the case where plant varieties are intended for research, trial, exhibition, international exchange or production of hybrid seeds for export.

2. Plant varieties not belonging to the main plant species may be produced, traded, exported or imported only if breeding organizations or individuals are granted permission for self-declaration of circulation of plant varieties as provided for in Article 17 hereof, except in the case where plant varieties are intended for research, trial, advertisement, exhibition, international exchange or production of hybrid seeds for export. In case where organizations and individuals wish to apply for the decision on recognition of circulation of plant varieties, they must comply with the provisions of Article 15 of this Law; or if they wish to apply for the decisions on recognition of the privileged circulation of plant varieties, they must comply with the provisions of Article 16 of this Law.

3. Both Vietnamese and foreign organizations and individuals whose representative offices or branches are operating in the crop variety sector in Vietnam shall have the right to submit applications bearing their names for decisions on recognition of circulation or permission for self-declaration of circulation of plant varieties.

4. The grant of the decision on recognition of circulation of plant varieties shall be effected concurrently with the grant of the plant variety patent if organizations and individuals applying for recognition of circulation of plant varieties under their own names make their requests and satisfy the requirements concerning the protection of plant varieties in accordance with the law on intellectual property.

5. Plant varieties belonging to the main plant species must be tested by accredited independent testing bodies (hereinafter referred to as plant variety testing body or bodies) before granting or extending the decision on recognition of circulation of plant varieties, except in the case where plant varieties are granted the decision on recognition of privileged circulation of plant varieties as stipulated in Article 16 of this Law.

Ornamental plant varieties belonging to the main plant species must be trialed in accordance with clause 2 of Article 18 herein.

6. Over periods of time, the Minister of Agriculture and Rural Development shall promulgate and amend the Nomenclature of main crops.

Article 14. Names of plant varieties

1. The name of a plant variety shall not be accepted in the following cases:

a) The name includes numerals only;

b) The name violates historical, cultural, moral traditions, national customs and values.

c) The name is read or written the same as the name of a national leader, hero/heroine, celebrity, a food, beverage or pharmaceutical;

d) The name of a state agency, a people's armed force unit, political organization, socio-political organization, socio-political-professional organization, social organization, socio-professional organization is used to make a part or the whole of the name of a plant variety, unless otherwise approved by concerned agencies, organizations or units;

dd) The name easily causes mistakes about the particulars or characteristics of that plant variety;

e) The name easily causes mistakes about the author’s name;

g) The name is the same as the name of the patented plant variety.

2. Organizations and individuals trading plant variety propagating materials must use the plant variety’s name obtaining the decision on recognition of circulation of plant varieties or permission for self-declaration of circulation of plant varieties.

3. In order for the name of a plant variety to be used in combination with a brand name, trade name or indications similar to a name of the plant variety recognized for circulation or declared for circulation for production and trading purposes, the name must be easily identifiable.

Article 15. Issuance, re-issuance, renewal, suspension, restoration and revocation of the decision on recognition of circulation of plant varieties

1. Requirements for grant of the decision on recognition of circulation of a plant variety shall be composed of the followings:

a) That plant variety's name is available;

b) Trial results show the distinctness, uniformity and stability of that plant variety;

c) Trial results show that plant variety is conformable to national standards regarding its value for cultivation and use;

d) Plant variety samples are preserved under the provisions of Article 20 herein;

dd) The declaration of information about that plant variety and cultivation processes is prepared by an organization or individual bearing its/his/her name on an application for the decision on recognition of circulation of that plant variety.

2. The decision on recognition of circulation of an annual plant variety has its validity period of 10 years and 20 years for that of a perennial plant variety. Both may be extended.

3. The decision on recognition of circulation of a plant variety may be re-issued in the following cases:

a) It is lost or damaged;

b) Its information has been changed or supplemented.

4. The decision on recognition of circulation of a plant variety may be extended if the following requirements are met:

a) An organization or individual makes its/his/her request for such extension;

b) The results of the controlled trial stipulated in point a of clause 2 of Article 18 herein shows that plant variety conforms to national standards regarding its value for cultivation and use.

5. The decision on recognition of circulation of a plant variety may be suspended if that plant variety fails to maintain the same level of uniformity or stability or the same value for cultivation or use as determined by the date of grant of the decision on circulation of that plant variety.

6. The decision on recognition of circulation of a plant variety which has been suspended may be restored if the organization or individual awarded that decision has managed to correct the failure specified in clause 5 of this Article.

7. The decision on recognition of circulation of a plant variety may be revoked in the following cases:

a) It is established that the application documentation for recognition of circulation of a plant variety is fraudulent;

b) The distinctness of the plant variety has not been maintained the same as that determined on the date of grant of the decision on recognition of circulation of the plant variety;

c) The failure referred to in clause 5 of this Article has not been corrected;

d) The holder of the decision has already been subject to an administrative penalty and repeats its/his/her offence;

dd) The holder of the decision commits other violation of law that results in revocation of that decision in accordance with laws in force.

8. The Government shall regulate application documents, processes, procedures for, authority over issuance, re-issuance, renewal, suspension, restoration and revocation of the decision on recognition of circulation of a plant variety.

Article 16. Grant of the decision on recognition of circulation of a plant variety

1. Requirements for grant of the decision on recognition of circulation of a plant variety shall be composed of the followings:

a) The plant variety is a specialty or indigenous propagated one, or the plant variety existing and used for crop production purposes for a long time or the one requested for grant of such decision by local jurisdictions;

b) The description of particulars and status of the plant variety is available;

c) Plant variety samples are preserved under the provisions of Article 20 herein.

2. As for the decision on recognition of privileged circulation of a plant variety referred to in clause 1 of this Article, provisions laid down in clause 2, 4, 5 and 6 herein shall not be applied.

3. The Government shall regulate application documents, processes, procedures for, authority over issuance, re-issuance and revocation of the decision on recognition of privileged circulation of a plant variety.

Article 17. Self-declaration of circulation of a plant variety

1. Requirements for self-declaration of circulation of a plant variety shall be as follows:

a) That plant variety's name is available;

b) The plant variety has the value for cultivation or use conformable to national standards applied to plant species obtaining permission for self-declaration of circulation; in the absence of national standards, local standards shall be applied;

c) Declaration of information about the plant variety and propagation processes is prepared by a self-declaring organization or individual.

2. Self-declaring organizations and individuals shall be responsible for ensuring provided information is accurate.

3. The Government shall regulate application requirements, processes and procedures for self-declaration of circulation of a plant variety.

Section 3. PLANT VARIETY TESTING

Article 18. Contents of a plant variety test

1. Tests of a plant variety for its distinctness, uniformity and stability.

2. Tests of a plant variety for its value for cultivation or use, including:

a) Controlled tests;

b) Narrow field tests;

b) Wide field tests.

Article 19. General requirements concerning plant variety testing

1. Plant variety tests referred to in clause 1 and point a of clause 2 of Article 18 herein shall only be conducted at one fixed location.

2. Plant variety tests referred to in point b and c of clause 2 of Article 18 herein shall be conducted in specific regions. The plant variety that is tested in a region shall obtain the decision on recognition of circulation of a plant variety issued by the competent authority in that region.

3. Testing methods and determination of regions for plant variety tests shall be prescribed in national standards of methods of testing of plant species intended for testing.

4. Gardens of perennial plant varieties must be established by organizations and individuals signing their names on applications for recognition of circulation of these plant varieties in conformance to national standards of the method of testing of plant varieties which is employed in order to evaluate necessary indicators.

5. Both narrow and wide tests shall be conducted at the same time.

6. The genome sequencing method shall be used in place of the distinctness testing method in order to check the trueness to variety.

7. Before testing genetically modified plant varieties, the risk assessment must be carried out in accordance with the law on biodiversity.

Article 20. Storage of plant variety samples

1. The sample of a plant variety used for applying for the circulation of that plant variety must be kept during the period of testing and circulation of that plant variety (hereinafter referred to as retention sample) managed by a body specialized in management of crop production.

2. Retention of the plant variety sample shall be carried out in one of the following forms:

a) Storage of the crop propagating materials;

b) Storage of crop genome sequencing data;

c) Storage of both crop propagating materials and crop genome sequencing data.

3. A retention sample shall be used:

a) as the plant variety for testing purposes, the control plant variety, the similar plant variety and the typical plant variety serving tests;

b) for testing and evaluation of a plant variety;

c) Inspection, examination and handling of disputes related to plant varieties.

4. The Minister of Agriculture and Rural Development shall set out specific regulations on this Article.

Article 21. Issuance, re-issuance and revocation of the decision on recognition of a plant variety testing organization

1. Requirements for grant of the decision on recognition of a plant variety testing organization shall be composed of the followings:

a) A person directly conducting tests must hold at least a university degree in one of the specialties related to crops, plant protection and biology;

b) The plant variety testing organization owns or hires venues, facilities and equipment appropriate for performing tests in conformity with national standards regarding testing of plant varieties with respect to the plant species to be tested.

2. The decision on recognition of a plant variety testing organization may be re-issued in the following cases:

b) The decision is lost or damaged;

b) Information pertaining to the testing organization inscribed in the decision on recognition of a plant variety testing organization has been changed or supplemented.

3. The decision on recognition of a plant variety testing organization may be revoked in the following cases:

a) The decision’s contents are erased or revised;

b) Counterfeit papers and dishonest information have been found in the application package for recognition of a plant variety testing organization;

c) The testing organization holding the decision has committed any violation of law and such violation leads to revocation of the decision on recognition of a plant variety testing organization;

d) The holder of the decision has no longer met one of the requirements set forth in clause 1 of this Article;

dd) The holder of the decision has already been subject to an administrative penalty and repeats its offence;

4. The Government shall regulate application documents, processes, procedures for, authority over issuance, re-issuance and revocation of the decision on recognition of a plant variety testing organization.

Section 4. PRODUCTION AND TRADING OF PLANT VARIETIES

Article 22. Requirements for eligibility of an organization or individual for production and trading of plant varieties

1. Organizations and individuals producing plant varieties shall be obliged to meet the following requirements:

a) They have to own plant varieties or have to be authorized by other organizations or individuals owning plant varieties obtaining the decision on recognition of circulation or permission for self-declaration of circulation from competent authorities;

b) They own or hire locations, facilities and equipment conformable to national standards of methods for production of plant varieties; in the absence of national standards, local standards shall be applied.

2. Organizations and individuals trading plant varieties must set up a legitimate business location and ensure that the origin of a plant variety batch may be traced back.

3. The Government shall issue specific regulations of this Article.

Article 23. Production of plant varieties

1. Production of plant varieties shall be carried out by employing the sexual propagation method or the asexual propagation method in conformity with national standards of plant variety production; in the absence of national standards, local standards shall be applied.

2. Plants or gardens providing asexual propagation materials and multi-trait hybrid seeds of perennial fruit trees and industrial perennials must be awarded the decision on recognition of the first-generation plant or the decision on recognition of the first-generation plant garden under the provisions of Article 24 herein.

Article 24. Issuance, restoration and revocation of the decision on recognition of the first-generation plant or the decision on recognition of the first-generation plant garden

1. A plant may obtain the decision on recognition of the first-generation plant after undergoing selection processes in conformity with national standards regarding the quality of the first-generation plant. In the absence of national standards, bodies specialized in management of crop production shall have to issue local standards to be applied.

2. A garden may obtain the decision on recognition of the first-generation plant garden after undergoing selection processes in conformity with national standards regarding the quality of the first-generation plant garden. In the absence of national standards, bodies specialized in management of crop production shall have to issue local standards to be applied.

3. The quality of a first-generation plant or a first-generation plant garden shall be managed under national standards or local standards regarding the quality of the first-generation plant and the first-generation plant garden as provided in clause 1 and clause 2 of this Article.

4. The decision on recognition of the first-generation plant or the decision on recognition of the first-generation plant garden may be suspended if the first-generation plant or the first-generation plant garden has no longer met national standards or local standards regarding the quality of the first-generation plant or the first-generation plant garden.

5. The decision on recognition of the first-generation plant or the decision on recognition of the first-generation plant garden may be restored to its former effect if the quality of the first-generation plant or the first-generation plant garden satisfies national standards or local standards regarding the quality of the first-generation plant or the first-generation plant garden.

6. The decision on recognition of the first-generation plant or the decision on recognition of the first-generation plant garden may be revoked if such decision fails to restore its effect under clause 5 of this Article after being suspended as provided in clause 4 of this Article.

7. The Government shall regulate application documents, processes, procedures for and authority over issuance, suspension, restoration and revocation of the decision on recognition of the first-generation plant or the decision on recognition of the first-generation plant garden.

Section 5. MANAGEMENT OF QUALITY OF PLANT VARIETIES

Article 25. General requirements concerning management of quality of plant varieties

1. The tasks of management of quality of plant varieties shall include the management of quality of plant variety and the management of quality of propagating materials under the provisions of this Law and legislation on the quality of products and commodities.

2. The quality of plant varieties shall be managed in accordance with national standards or local standards applied to specific plant species as provided in point c of clause 1 of Article 15 and point b of clause 1 of Article 17 herein.

3. The quality of propagating materials shall be managed as follows:

a) Materials intended for propagating varieties of plants belonging to the major plant species are group-2 products and commodities prescribed by legislation on the quality of products and commodities. The quality of materials intended for propagating varieties of major plants shall be managed based on national technical regulations on the quality of crop propagating materials and standards declared to be applied by producers or importers;

b) Materials intended for propagating varieties of plants not belonging to the major plant species are group-1 products and commodities prescribed by legislation on the quality of products and commodities. The quality of materials intended for propagating varieties of plants not belonging to the major plant species shall be managed based on standards regarding the quality of crop propagating materials declared to be applied by organizations and individuals.

Article 26. Evaluation of plant variety cultivation fields, sampling of propagating materials

1. The evaluation of plant variety cultivation fields shall be conducted during the period of production of plant varieties according to national standards on methods for evaluation of plant variety cultivation fields and by a person completing professional training in such evaluation.

2. Sampling of propagating materials shall be carried out according to national standards regarding methods for sampling of plant varieties and by a person completing professional training in such sampling activity.

3. The Minister of Agriculture and Rural Development shall set out specific regulations on this Article.

Article 27. Labeling and advertising of plant varieties

1. Plant variety labeling and advertising shall be carried out under the provisions of this Law and legislation on commerce and advertisement.

2. Information inscribed on labels and advertisements of plant varieties must be corresponding to those that have been provided in the application package for the decision on recognition of circulation of the plant variety and endorsed by competent authorities, or contents of self-declarations of circulation of the plant variety.

3. The Government shall issue specific regulations of this Article.

Section 6. EXPORT AND IMPORT OF PLANT VARIETIES

Article 28. Export of plant varieties

1. A plant variety obtaining the decision on recognition of circulation or permission for self-declaration of circulation, and not appearing in the Nomenclature of genetic resources of plant varieties prohibited from export may be exported and subject to provisions of laws on commerce and foreign trade management.

2. The plant variety and hybrid seeds of the plant variety which has not yet obtained the decision on recognition of circulation or permission for self-declaration of circulation, and is not in the Nomenclature of genetic resources of plant varieties prohibited from export, may be exported for research, testing, advertising, exhibition and non-commercial international exchange purposes with the permission of the Ministry of Agriculture and Rural Development.

3. The Government shall regulate application documents, processes and procedures for grant of the permit for export of plant varieties as provided in clause 2 of this Article.

Article 29. Import of plant varieties

1. A plant variety obtaining the decision on recognition of circulation or permission for self-declaration of circulation, and not appearing in the Nomenclature of genetic resources of plant varieties prohibited from export may be exported and subject to provisions of laws on commerce and foreign trade management.

In case of import of plant varieties for business purposes, documents and materials meeting regulations laid down in clause 1 of Article 23 and clause 1 of Article 26 herein must be presented and submitted.

2. The plant variety which has not yet obtained the decision on recognition of circulation or permission for self-declaration of circulation may be imported for research, testing, advertising, exhibition and international exchange purposes with the permission of the Ministry of Agriculture and Rural Development.

3. The plant variety serving production and business purposes must be subject to the state inspection of quality thereof conducted by a crop production regulatory body affiliated to the Ministry of Agriculture and Rural Development, and must satisfy quality requirements, except in the case where:

a) Seeds of parental plants are used for production of hybrid seeds of plant varieties;

b) Plant varieties which have not yet obtained the decision on recognition of circulation or permission for self-declaration of circulation are imported under clause 2 of this Article;

c) Plant varieties are temporarily imported, re-exported, or in transit or the merchanting trade;

d) Plant varieties are sent to bonded warehouses.

4. The Minister of Agriculture and Rural Development shall regulate procedures and processes for the state inspection of the quality of imported plant varieties.

5. The Government shall regulate application documents, processes and procedures for grant of the permit for import of plant varieties.

Section 7. RIGHTS AND OBLIGATIONS OF PLANT VARIETY ORGANIZATIONS AND INDIVIDUALS

Article 30. Rights and obligations of plant variety research, selection and breeding organizations and individuals

1. Plant variety research, selection and breeding organizations or individuals shall have the following rights:

a) Invest in research, selection and breeding of plant varieties; investigate, evaluate, collect, retain and exploit domestic or imported propagating materials for plant variety research, selection and breeding purposes;

b) Enjoy the State’s incentive policies regarding investments in science and technology and particular policies in the sector or region specified by laws;

c) Cooperate with other domestic and overseas organizations and individuals in research, selection and breeding of plant varieties in accordance with law.

2. Plant variety research, selection and breeding organizations or individuals shall have the following obligations:

a) Fulfill obligations prescribed by laws on science and technology and other regulations of relevant laws;

b) Register the protection of plant variety rights before plant varieties are put into business or transferred in the case of research, selection, breeding, discovery and development of these plant varieties funded by the state budget or from projects under the State control; the transfer of plant varieties must comply with the law on technology transfer;

c) Comply with the provisions of law on biodiversity and other provisions of relevant laws during the period of research, selection, breeding, testing and trial of genetically modified plant varieties.

Article 31. Rights and obligations of organizations and individuals signing their names in applications for issuance of the decision on recognition of circulation or permission for self-declaration of circulation of plant varieties

1. Organizations and individuals signing their names in applications for issuance of the decision on recognition of circulation or permission for self-declaration of circulation of plant varieties shall have the right to circulate plant varieties or authorize other organizations or individuals to circulate plant varieties.

2. Organizations and individuals signing their names in applications for issuance of the decision on recognition of circulation or permission for self-declaration of circulation of plant varieties shall take on the following obligations:

a) Maintain the distinctness, uniformity, stability, value for cultivation and use of plant varieties during the period of circulation, except for the case where the decision on recognition of privileged circulation of the plant variety under the provisions of Article 16 hereof;

b) Compensate for any losses incurred during the period of circulation of a plant variety which is not the same as the plant variety obtaining the decision on recognition of circulation; any losses arising from the circulation of fake plant varieties or ones not conforming to national technical regulations on quality or national quality standards or local quality standards already declared to be in force; any losses arising from supply of false information on plant varieties and production processes already certified by competent authorities.

3. Organizations and individuals who self-declare, or are authorized to self-declare, the circulation of plant varieties shall be obliged to compensate for any losses occurring due to the circulation of the plant variety which is not the same as the plant variety already completing self-declaration of circulation; any losses arising from the circulation of fake plant varieties or plant varieties which fail to meet national technical regulations or national standards or local standards already declared applicable; any losses incurred due to supply of false information about plant varieties and plant variety production processes.

Article 32. Rights and obligations of plant variety usage organizations and individuals

1. Plant variety usage organizations or individuals shall have the following rights:

a) Have access to all information about plant varieties and instructions for use of plant varieties;

b) Receive compensations for any losses that may arise in accordance with laws;

c) File a petition, complaint, denunciation or lawsuit against violations of law committed by an organization or individual obtaining the decision on recognition of circulation or permission for self-declaration of circulation of a plant variety.

2. Plant variety usage organizations or individuals shall have the following obligations:

a) Comply with production processes declared by organizations and individuals signing their names in applications for issuance of the decision on recognition of circulation or permission for self-declaration of circulation of plant varieties;

b) In case of incidents that occur or negative consequences that arise from plant varieties, promptly inform plant variety supply organizations or individuals and local authorities to seek their possible solutions.

Article 33. Rights and obligations of organizations and individuals signing their names on application for issuance of the decision on recognition of the first-generation plant or the decision on recognition of the first-generation plant garden

1. Organizations and individuals signing their names on application for issuance of the decision on recognition of the first-generation plant or the decision on recognition of the first-generation plant garden shall have the right to exploit or authorize other organizations or individuals to exploit propagating materials serving production and trading purposes.

2. Organizations and individuals signing their names on application for issuance of the decision on recognition of the first-generation plant or the decision on recognition of the first-generation plant garden shall have the following obligations:

a) Ensure the quality of plant varieties is the same as that determined upon receipt of certification;

b) Exploit propagating materials in accordance with the decision on recognition of the first-generation plant or the decision on recognition of the first-generation plant garden;

c) Pay fees prescribed by laws on fees and charges.

Article 34. Rights and obligations of plant variety testing organizations

1. Plant variety testing organizations shall have the following rights:

a) Test plant varieties under terms and conditions of contracts with requesting organizations or individuals;

b) Receive costs of testing of plant varieties under terms and conditions of contracts with requesting organizations or individuals;

2. Plant variety testing organizations shall have the following obligations:

a) Conduct tests in accordance with the decision on recognition of the plant variety testing organization;

b) Bear legal liabilities for testing results and retain testing results in accordance with laws on archival;

c) Take responsibility for ensuring information security to organizations and individuals submitting their request for testing of plant varieties.

3. Plant variety testing organizations must refuse to perform tests serving the purposes of issuance of the decision on recognition of circulation of plant varieties with respect to:

a) Plant varieties owned by testing organizations signing their names on applications for issuance of the decision on recognition of circulation thereof;

b) Plant varieties owned by units in partnership with testing organizations when submitting applications for certification of conformance to testing regulations;

c) Plant varieties owned by subsidiaries of the same parent company or incorporation or general company, including testing organizations;

d) Plant varieties owned by affiliates of the same public service unit, including testing organizations.

Article 35. Rights and obligations of plant variety production and trading organizations and individuals

1. Plant variety production and trading organizations and individuals shall have the right to produce and trade plant varieties if they meet requirements specified in Article 22 hereof.

2. Plant variety production and trading organizations or individuals shall have the following obligations:

a) Strictly comply with regulations laid down in Article 22 hereof;

b) Declare their conformity with standards and regulations under laws;

c) Recall and handle plant varieties on the market which have failed to meet quality standards;

d) Pay compensations for any losses that may arise in accordance with laws;

dd) Provide certificates of origin for propagating materials or documents on tracing of the origin of plant variety batches;

e) Attach labels to genetically modified plant varieties in accordance with laws.