Chương 3 Nghị định 120/2005/NĐ-CP : Thẩm quyền, thủ tục xử lý vi phạm pháp luật về cạnh tranh

CHAPTER III

AUTHORITY AND PROCEDURES FOR DEALING WITH BREACHES OF LAWS ON COMPETITION

SECTION I: AUTHORITY FOR DEALING WITH BREACHES OF LAWS ON COMPETITION

Article 42 Authority of administrative body for competition and of head of administrative body for competition

1. The administrative body for competition shall have the following powers with respect to breaches being unfair competitive practices and other breaches of the laws on competition stipulated in Section 5 of Chapter II of this Decree:

(a) To impose a warning;

(b) To impose a fine;

(c) To confiscate the material evidence and facilities used to commit the breach;

(d) To compel the entity in breach to make a public retraction.

2. The head of the administrative body for competition shall have the right to make decisions on application, amendment and revocation of administrative preventive measures prior to the time when a file on a competition case is transferred to the Competition Council to deal with.

Article 43 Authority of Competition Council and of councils dealing with competition cases

The Competition Council and councils dealing with competition cases shall have the following powers to deal with breaches of the provisions on control of practices in restraint of competition:

1. To impose a warning.

2. To impose a fine.

3. To confiscate the material evidence and facilities used to commit the breach.

4. To apply the measures stipulated in sub-clauses (c), (d), (dd), (e), (g), (h), (i) and (k) of article 4.4 of this Decree.

5. To request the competent body to withdraw a business registration certificate or to revoke the right to use a licence or practising certificate.

6. To request the competent body to apply the measures prescribed in sub-clauses (a) and (b) of article 4.4 of this Decree.

Article 44 Authority of chairman of Competition Council

The chairman of the Competition Council shall have the right to make decisions on application, amendment and revocation of administrative preventive measures after receipt of a file on a competition case.

Article 45 Authority of other bodies

Authority by other bodies to impose penalties for breaches of provisions on unfair competitive practices relating to intellectual property rights shall be determined in accordance with the law on dealing with administrative offences.

SECTION 2: PROCEDURES FOR DEALING WITH BREACHES OF LAWS ON COMPETITION

Article 46: Procedures for dealing with breaches of laws on competition

The procedures for dealing with breaches of the laws on competition shall comprise the following procedures:

1. Procedures for dealing with breaches of the provisions on control of practices in restraint of competition and on unfair competitive practices.

2. Procedures for application, amendment and revocation of administrative preventive measures.

3. Procedures for dealing with breaches of other provisions of the laws on competition.

Article 47 Procedures for dealing with breaches of provisions on control of practices in restraint of competition and on unfair competitive practices

Dealing with breaches of the provisions on control of practices in restraint of competition and on unfair competitive practices shall follow the order and procedures for competition legal proceedings stipulated in Chapter V of the Law on Competition and in Chapter III of Decree 1162005-ND-CP of the Government dated 15 September 2005 providing detailed regulations for implementation of a number of articles of the Law on Competition.

Article 48 Procedures for application, amendment and revocation of administrative preventive measures

The procedures for application, amendment and revocation of administrative preventive measures shall be implemented in accordance with article 61 of the Law on Competition and the provisions in Section 7 of Chapter III of Decree 116-2005-ND-CP of the Government dated 15 September 2005 providing detailed regulations for implementation of a number of articles of the Law on Competition.

Article 49 Minutes of breach of other provisions of laws on competition

1. Upon discovery of a breach of other provisions of the laws on competition stipulated in Section 5 of Chapter II of this Decree, the authorized person shall issue an order uspending immediately the conduct in breach and shall prepare minutes of the breach.

2. The minutes shall contain the following particulars:

(a) Date and location of preparation of the minutes;

(b) Full name and title of the person who prepared the minutes;

(c) Full name, address and occupation of the individual in breach or, in the case of an organization in breach, the name and address of the organization;

(d) Date and location of occurrence of the breach;

(dd) Description of the conduct in breach;

(e) Administrative preventive measures (if any);

(g) Status of seized material evidence and facilities (if any);

(h) Declaration of the individual in breach or of the representative of the organization in breach;

(i) Full name, address and declaration of any witness or of any individual suffering loss or of the representative of any organization suffering loss.

3. At least two copies of the minutes shall be prepared. The minutes shall be signed by the person who prepared them and by the individual in breach or by the representative of the organization in breach; and if there was any witness and any entity suffering loss, the minutes shall also be signed by the witness(es) and by the individual suffering loss or by the representative of the organization suffering loss. Where the minutes contain more than one page, all of the entities referred to in this clause must sign each page. If any individual in breach, representative of an organization in breach, witness, person suffering loss or representative of an organization suffering loss refuses to sign the minutes, the person preparing the minutes shall note it in the minutes.

4. After the minutes have been completed, one copy shall be handed to the individual or organization in breach; if the breach exceeds the jurisdiction to deal with the breach of the person preparing the minutes, the minutes must be forwarded to the body competent to deal with the breach.

Article 50 Time-limit for issuing decision dealing with breach of other provisions of laws on competition

1. The time-limit for issuing a decision dealing with a breach of other provisions of the laws on competition shall be ten (10) days from the date of preparation of the minutes of the breach; in complex circumstances, this time-limit shall be thirty (30) days.

2. If an authorized person considers that more time is required to verify or collate evidence, he or she shall provide a written request to extend the time-limit to the person directly in charge of him or her; and any grant of an extension shall be in writing and shall not exceed thirty (30) days. An authorized person shall not issue a decision dealing with a breach after the expiry of the time-limit stipulated above, and if a person is at fault in allowing the time-limit to expire without issuing a decision dealing with a breach, such person shall be dealt with in accordance with law.

Article 51 Decision dealing with breach of other provisions of laws on competition

1. A decision dealing with a breach of other provisions of the laws on competition shall contain the following particulars:

(a) Date of issuance of the decision;

(b) Full name and title of the person issuing the decision;

(c) Full name, address and occupation of the individual in breach or, in the case of an organization in breach, the name and address of the organization;

(d) Details of the act, conduct or practice in breach; any circumstances relevant to resolution; clause and articles of applicable legal instruments;

(dd) Principal penalty, additional form of penalty (if any) and measures for remedying consequences (if any);

(e) Time-limit for enforcement of the decision, place for enforcement of the decision, and signature of the person issuing the decision;

(g) Right pursuant to law to lodge a complaint about the decision dealing with a breach of other provisions of the laws on competition.

2. A decision dealing with a breach of other provisions of the laws on competition shall record that, if the individual or organization in breach fails to implement voluntarily the decision, the decision will be enforced compulsorily.

3. A decision dealing with a breach of other provisions of the laws on competition shall become effective as from the date of its signing, unless the decision itself provides for a different effective date.

4. A decision dealing with a breach of other provisions of the laws on competition shall be forwarded to the individual or organization in breach and to the fine-collecting body within three working days from the date of issuance of the decision.

Article 52 Transfer of files on competition cases with indications of criminal offences

If indications of a criminal offence are identified, the competent body shall transfer the file, the material evidence and the facilities used to commit the breach to the body with authority to institute a criminal prosecution in accordance with article 94 of the Law on Competition. If a decision dealing with a breach has already been issued, the body which issued such decision must revoke it and transfer the file to the body with authority to institute a criminal prosecution within three working days from the date of revocation of the decision.

SECTION 3: PROCEDURES FOR ENFORCEMENT OF DECISIONS DEALING WITH COMPETITION CASES AND OF DECISIONS DEALING WITH BREACHES OF OTHER PROVISIONS OF LAWS ON COMPETITION

Article 53 Compliance with decision dealing with competition case or decision dealing with breach of other provisions of laws on competition

1. An enterprise which is subject to a decision dealing with a competition case issued by a council dealing with a competition case or by the administrative body for competition must comply with the decision within a time-limit of thirty (30) days from the date of effectiveness of such decision dealing with the breach.

2. Any organization or individual being in breach of other provisions of the laws on competition and being dealt with pursuant to Section 5 of Chapter II of this Decree must comply with the decision dealing with the breach within ten (10) days from the date on which such decision is delivered.

3. If upon expiry of the time-limit stipulated in either clause 1 or clause 2 of this article the organization or individual fails to comply voluntarily with the decision, such decision shall be enforced pursuant to article 55 or article 56 of this Decree.

Article 54 Payment of fines

Any organization or individual which is fined by a decision dealing with a competition case or a decision dealing with a breach of other provisions of the laws on competition must pay the fine to the State Treasury stipulated in such decision.

Article 55 Procedures for enforcement of decisions dealing with competition cases

1. If upon expiry of the time-limit stipulated in article 53.1 of this Decree the organization or individual having a penalty imposed fails to comply voluntarily with the decision and does not institute court proceedings pursuant to Section 7 of Chapter V of the Law on Competition, the judgment creditor shall have the right to request the competent bodies stipulated in clauses 2 and 3 of this article to enforce the decision dealing with the competition case within the scope of the functions, duties and powers of such body.

2. The competent body shall be responsible to withdraw a business registration certificate or to revoke the right to use a licence or practising certificate which such body issued to the enterprise which committed an administrative breach, if so required by the council dealing with the competition case in its decision.

3. Other competent bodies shall be responsible to organize coercive measures, namely, the restructure of an enterprise which abused its dominant market position, the division or split of an enterprise which merged or consolidated, or the compulsory re-sale of that part of an enterprise which was acquired, if so required by the council dealing with the competition case in its decision.

4. A civil judgment enforcement office of the province or city under central authority where the judgment debtor has its head office or resides or where there are assets of the judgment debtor shall be responsible to organize implementation of that part of the decision dealing with the competition case relating to assets at the request of the judgment creditor as named in the decision dealing with the competition case.

Article 56 Procedures for enforcement of decision dealing with breach of other provisions of laws on competition

If upon expiry of the time-limit stipulated in article 53.2 of this Decree the organization or individual having a penalty imposed fails to comply voluntarily with the decision dealing with a breach of other provisions of the laws on competition, such entity shall be compelled to implement the decision pursuant to articles 66 and 67 of the Ordinance on Dealing with Administrative Offences and the provisions of Decree 37-2005-ND-CP of the Government dated 18 March 2005 on procedures applicable to enforcement of decisions imposing penalties for administrative offences.