Nghị định 58/2016/NĐ-CP quy định chi tiết về kinh doanh sản phẩm, dịch vụ mật mã dân sự và xuất khẩu, nhập khẩu sản phẩm mật mã dân sự

NGHỊ ĐỊNH

NGHỊ ĐỊNH QUY ĐỊNH CHI TIẾT VỀ KINH DOANH SẢN PHẨM, DỊCH VỤ MẬT MÃ DÂN SỰ VÀ XUẤT KHẨU, NHẬP KHẨU SẢN PHẨM MẬT MÃ DÂN SỰ

Căn cứ Luật tổ chức Chính phủ ngày 19 tháng 6 năm 2015;

Căn cứ Luật an toàn thông tin mạng ngày 19 tháng 11 năm 2015;

Căn cứ Luật xử lý vi phạm hành chính ngày 20 tháng 6 năm 2012;

Theo đề nghị của Bộ trưởng Bộ Quốc phòng;

Chính phủ ban hành Nghị định quy định chi Tiết về kinh doanh sản phẩm, dịch vụ mật mã dân sự và xuất khẩu, nhập khẩu sản phẩm mật mã dân sự.

DECREE

ON THE SALE AND PROVISION OF CIVIL CRYPTOGRAPHY PRODUCTS AND SERVICES AND THE EXPORTATION OR IMPORTATION OF CIVIL CRYPTOGRAPHY PRODUCTS

Pursuant to the Law on government organization dated June 19, 2015;

Pursuant to the Law on network information security dated November 19, 2015;

Pursuant to the Law on handling of administrative violations dated June 20, 2012;

At the request of the Minister of National Defense;

The government promulgates the Decree on the sale and provision of civil cryptography products and services and the exportation or importation of civil cryptography products.

Chapter I

GENERAL

Article 1. Scope

This Decree elaborates the sale and provision of civil cryptography products and services and the importation or exportation of civil cryptography products. Moreover, it defines the list of civil cryptography products and services and the list of civil cryptography products imported and exported under license. It also regulates the activities of inspecting and handling of administrative violations in the sector of civil cryptography.

Article 2. Regulated entities

1. Traders of civil cryptography products and services, importers and exporters of civil cryptography products and related organizations and individuals.

2. Organizations and persons committing administrative violations in relation to civil cryptography, individuals competent to make written records of and sanctions against administrative violations related to civil cryptography, and related entities.

Chapter II

SALE OF CIVIL CRYPTOGRAPHY PRODUCTS AND SERVICES, EXPORTATION OR IMPORTATION OF CIVIL CRYPTOGRAPHY PRODUCTS

Article 3. Listing of civil cryptography products and services and of civil cryptography products exported and imported under license

The list of civil cryptography products and services and the list of civil cryptography products exported and imported under license are enclosed to Appendix II of this Decree.

Article 4. Requirements for licensing of trade in civil cryptography products and services

1. Enterprises shall be licensed to sell and provide civil cryptography products and services upon their fulfillment of requirements as defined in section 2, Article 31 of the Law on network information security.

2. The licensing requirements as stated in point a, section 2, Article 31 of the Law on network information security are that: The enterprise has to employ at least 02 technicians who possess university-level or higher qualifications in electronics - telecommunications, information technology, mathematics or information security. Moreover, the managerial personnel of the enterprise have graduated in electronics - telecommunications, information technology, mathematics, information security or other discipline with a training certificate in information security.

3. The licensing requirements as stated in point dd, section 2, Article 31 of the Law on network information security are that the enterprise must possess a customer and technical service system pertinent to its business scope, target customers and product range. 

Article 5. Procedure for issuance, amendment, re-issuance and extension of a license to sell and provide civil cryptography products and services

1. A license to sell and provide civil cryptography products and services shall be issued, amended, re-issued and extended according to Article 32 and Article 33 of the Law on network information security.

2. Corporate applicants for issuance, amendment, re-issuance or extension of a license to sell and provide civil cryptography products or services shall submit their applications to the Government Cipher Committee by hand, by post or via online submission service provided publicly by the Department of Civil Cryptography Management and Cryptographic Product Testing, phone/facsimile number: 04-3775.6896, email: info@nacis.gov.vn, website: http://www.nacis.gov.vn.

3. Form No. 01, 02 and 03, as enclosed to Appendix III of this Decree, are promulgated for use in the application for issuance, amendment, re-issuance and extension of the license to sell and provide civil cryptography products and services.

Article 6. Procedure for licensing of exportation or importation of civil cryptography products

1. The licensing of importation or exportation of civil cryptography products is subject to Article 34 of the Law on network information security.

2. Corporate applicants for a license to import and export civil cryptography products shall submit documents to the Government Cipher Committee by hand, by post or via online submission service provided publicly by the Department of Civil Cryptography Management and Civil Cryptography Product Testing as mentioned in point 2, Article 5 of this Decree.

3. Form No. 04 and 05, as enclosed to Appendix III of this Decree, are promulgated for use in the application for issuance, amendment, re-issuance and extension of the license to import and export civil cryptography products.

Chapter III

INSPECTION AND PENALTIES

Article 7. Inspection

1. Government Cipher Committee shall lead and cooperate with relevant ministries, agencies and local authorities to conduct inspections of the trade in civil cryptography products and services and the use of civil cryptography products.

2. Traders of civil cryptography products and services and users of civil cryptography products shall accord the inspections by competent governmental authorities as per the laws on inspection.

Article 8. Handling of violations of regulations on the sale and provision of civil cryptography products and services and the use of civil cryptography products

1. A fine of VND 10,000,000 to VND 20,000,000 shall be imposed against the following activities:

a) Sell, transfer, lease or lend the license to sell and provide civil cryptography products and services or the license to import and export cryptography products;

b) Erase or alter the print on the license to sell and provide civil cryptography products and services or the license to import and export cryptography products;

c) Submit no application for amendment upon changes in names, legal representative or civil cryptography products or services;

d) Submit of no application for re-issuance of a license lost or ruined;

dd) Fail to report or delaying reporting to the Government Cipher Committee on the trade in civil cryptography products and services, the exportation or importation of civil cryptography products or the summarized information of customers;

e) Use civil cryptography products, not provided by an enterprise license to sell and provide civil cryptography products, but fail to report to the Government Cipher Committee;

g) Fail to record, retain and secure the information on customers, names, types, quantity and uses of civil cryptography products and services.

2. A fine of VND 20,000,000 to VND 30,000,000 shall be imposed against business activities that contravene the license to sell and provide civil cryptography products and services or the license to export and import civil cryptography products.

3. A fine of VND 40,000,000 to VND 50,000,000 shall be imposed against:

a) Sale of civil cryptography products and services, exportation or importation of civil cryptography products without a license to sell and provide civil cryptography products and services or a license to import and export civil cryptography products; or commercial provision of civil cryptography products and services with an expired license;

b) Failure to cease or terminate the provision of civil cryptography products and services for purposes of national defense, national security, social order or safety upon requests by competent governmental authorities;

c) Failure to cooperate or support competent governmental authorities' performing professional measures upon requests;

d) Refusal to provide essential information on cryptographic keys upon requests by competent governmental authorities.

4. Additional penalties:

a) Suspension of the license to sell and provide civil cryptography products and services and the license to import and export civil cryptography products in 01 to 03 months against violations defined in point a and b of, section 1 and section 2 of this Article;

b) Seizure of exhibits and instruments through which the violations are committed according to point c, section 1 and section 3 of this Article.

Article 9. Authority to impose penalties

1. Cipher inspectors on duty are authorized to:

a) Issue warnings;

b) Seize exhibits and instruments that facilitate the administrative violations; however, the highest worth of items seized is VND 500,000;

c) Carry out remedial measures.

2. Chief cipher inspectors and leaders of the professional inspectorate are authorized to:

a) Issue warnings;

b) Impose fines that do not exceed VND 50,000,000;

c) Suspend the license or business activities in temporary manner;

d) Confiscate exhibits and instruments that facilitate the administrative violations; however, the worth of items seized shall not exceed the value of the fine as stated in point b of this section;

dd) Carry out remedial measures.

3. Chairpersons of district People's Committees are authorized to:

a) Issue warnings;

b) Impose fines that do not exceed VND 25,000,000;

c) Suspend the license or business activities in temporary manner;

d) Confiscate exhibits and instruments that facilitate the administrative violations; however, the worth of items seized shall not exceed the value of the fine as stated in point b of this section;

dd) Carry out remedial measures.

4. Chairpersons of provincial People's Committees are authorized to:

a) Issue warnings;

b) Impose fines that do not exceed VND 50,000,000;

c) Suspend the license or business activities in temporary manner;

d) Confiscate exhibits and instruments that facilitate the administrative violations; however, the worth of items seized shall not exceed the value of the fine as stated in point b of this section;

dd) Carry out remedial measures.

5. Police officers, border guards, coast guards, customs officials, market surveillance officials are authorized to impose penalties intra vires  against administrative violations concerning civil cryptography as defined in this Decree, as per section 4, 5, 6, 7, Article 39, Article 40, Article 41, Article 42 and section 4, Article 45 of the Law on handling of administrative violations n^o 15/2012/QH13 dated June 20, 2012.

Article 10. Authority to record administrative violations in writing

Individuals holding titles as defined in Article 9 of this Decree and civil cryptography officials on duty are authorized to make written records of administrative violations as per regulations.

Chapter IV

IMPLEMENTATION

Article 11. Transition

1. Corporate traders of civil cryptography producers and services, licensed under the Government's Decree No. 73/2007/ND-CP dated May 08, 2007 on research, manufacture, sale and use of cryptographic items for securing information not deemed as governmental secrets, shall not be required to re-apply for another sale license, provided that their current license is still valid. The enterprises must apply for licensing as per this Decree at least 30 days prior to the expiry date of the license.

2. Enterprises requiring but having not a license to sell and provide civil cryptography products or services or to export and import civil cryptography products must apply for licensing as per this Decree.

Article 12. Effect

This Decree comes into force as of July 01, 2016. It replaces the Government's Decree No. 73/2007/ND-CP dated May 08, 2007 on research, manufacture, sale and use of cryptographic items for securing information not deemed as governmental secrets.

Article 13. Responsibility for implementation

Ministers, Heads of ministerial-level agencies, Heads of governmental agencies, Chairpersons of provincial People's Committees shall be responsible for implementing this Decree./.

APPENDIX I

LIST OF CIVIL CRYPTOGRAPHY PRODUCTS AND SERVICES
(Enclosed to the Government's Decree No. 58/2016/ND-CP dated July 01, 2016)

I. LIST OF CIVIL CRYPTOGRAPHY PRODUCTS

Note:

1. Civil cryptography products are described as systems, devices, integrated modules and circuits, and software designed specifically to protect information via cryptographic techniques that use “symmetric key algorithms” or “asymmetric key algorithms”.

2. The list of civil cryptography products on conditional sale excludes:

II. LIST OF CIVIL CRYPTOGRAPHY SERVICES

APPENDIX II

LIST OF CIVIL CRYPTOGRAPHY PRODUCTS EXPORTED AND IMPORTED UNDER LICENSE
(Enclosed to the Government's Decree No. 58/2016/ND-CP dated July 01, 2016)

Rules of the List:

- If a 4-digit code is stated, all 8-digit codes thereof are included.

- If a 6-digit code is stated, all 8-digit codes thereof are included.

- If 8-digit codes are specified, only those 8-digit codes are included.

- The list of civil cryptography products exported and imported under license shall only be applicable to devices whose HS codes, names and features described match with those defined in the List.

APPENDIX III

 (Enclosed to the Government's Decree No. 58/2016/ND-CP dated July 01, 2016)

Form No. 01

APPLICATION

For licensing of sale of civil cryptography products and services

To: Government Cipher Committee.

Name of the applicant enterprise (in Vietnamese): ............................................................

Name of the enterprise in foreign language (if applicable): ...............................................

Abbreviated name of the enterprise (if applicable): ...........................................................

Head office address:...........................................................................................................

Telephone: ………………………………………… Facsimile: .............................................

Email: ………………………………………… Website: .......................................................

Certificate of business registration/ Certificate of investment registration/ equivalent paper: ....

issued by: ………………………………………… date of issue: .........................................

Full name of the legal representative of the enterprise: ....................................................

Position: .............................................................................................................................

ID/ Citizen card/ Passport No.: ..........................................................................................
date of issue: …………………  issuing place: .............................................

We hereby apply to the Government Cipher Committing for the license to sell and provide the following civil cryptography products and services:

1. List of civil cryptography products to be licensed for sale

2. List of civil cryptography services to be licensed for commercial provision

I/We assume liabilities to the law for the accuracy of the information given and undertake to abide by the Law of network information security with regard to the sale and provision of civil cryptography products.

Form No. 02

APPLICATION

For amendment/ re-issuance/ extension of the license to sell and provide civil cryptography products and services

To: Government Cipher Committee.

Name of the applicant enterprise (in Vietnamese): ...........................................................

Name of the enterprise in foreign language (if applicable): ..............................................

Abbreviated name of the enterprise (if applicable): ..........................................................

Head office address: ........................................................................................................

Telephone: ………………………………………… Facsimile: .............................................

Email: ………………………………………… Website: .......................................................

Certificate of business registration/ Certificate of investment registration/ equivalent paper: .. issued by: ………………………………………… date of issue: .........................................

The license to sell and provide civil cryptography products and services n^o: ……………… as issued by the Government Cipher Committee on: …….. [date]

Full name of the legal representative of the enterprise: ..................................................

Position: ...........................................................................................................................

ID/ Citizen card/ Passport No.: ………………….. date of issue: .....................................
issuing place: ............................................................................................

Reason of the application: .................................................................................................

 (specify the reason of the request for amendment/ re-issuance/ extension of the License)

We hereby apply to the Government Cipher Committee for: .................................................

 (specify the request for amendment/ re-issuance/ extension of the License)

I/We assume liabilities to the law for the accuracy of the information given and undertake to abide by the Law of network information security with regard to the sale and provision of civil cryptography products.

Form No. 03

LICENSE FOR SALE AND PROVISION OF CIVIL CRYPTOGRAPHY PRODUCTS AND SERVICES

HEAD OF GOVERNMENT CIPHER COMMITTEE

Pursuant to the Law on network information security dated November 19, 2015;

Pursuant to the Government’s Decree No. … dated … 2016 on the sale and provision of civil cryptography products and services and the exportation and importation of civil cryptography products;

In view of the application by ..........¹ for the issuance/ amendment/ re-issuance/ extension of the license for sale and provision of civil cryptography products and services;

At the request of the Head of the Department of Civil Cryptography Management and Cryptographic Product Testing,

HEREBY DECIDES:

Article 1........................................................................................................................... ¹

Head office address: ........................................................................................................

Telephone: ………………………………………… Facsimile: ............................................

Certificate of business registration/ Certificate of investment registration n^o. …. as issued by ……. on ... ... ... [date];

Is licensed to sell and provide civil cryptography products and services according to the list enclosed to this license.

Article 2. ……………….. must abide by the Law on network information security and the Government's Decree No. .... dated ... 2016 on the sale and provision of civil cryptography products and services and the exportation and importation of civil cryptography products.

Article 3. This license for sale and provision of civil cryptography products and services is valid from … … … [date] to … … … [date]². This license replaces the license for sale and provision of civil cryptography products and services n^o …. /GPKDMMDS-BCY as issued by the Head of the Government Cipher Committee on ... [date]./.

_______________

¹ Name of the enterprise licensed.

² For an application for amendment, re-issuance or extension of the License.

LIST
CIVIL CRYPTOGRAPHY PRODUCTS AND SERVICES LICENSED
(Enclosed to the License for sale and provision of civil cryptography products and services n^o ....... /GPKDMMDS-BCY as issued by the Government Cipher Committee on … [date])

1. List of civil cryptography products licensed

2. List of civil cryptography services licensed

Form No. 04

APPLICATION

FOR LICENSING OF EXPORTATION/ IMPORTATION OF CIVIL CRYPTOGRAPHY PRODUCTS

To: Government Cipher Committee.

Name of the applicant enterprise (in Vietnamese): ...........................................................

Name of the enterprise in foreign language (if applicable): ..............................................

Abbreviated name of the enterprise (if applicable): ...........................................................

Head office address: .........................................................................................................

Head office address: .........................................................................................................

Telephone: ………………………………………… Facsimile: .............................................

Email: ………………………………………… Website: .......................................................

Certificate of business registration/ Certificate of investment registration/ equivalent paper: ... issued by: ………………………………………… on: ...................................................

We hereby apply to the Government Cipher Committee for the License to export civil cryptography products/ the License to import civil cryptography products as declared in the list enclosed.

I/We assume liabilities to the law for the accuracy of the information given and undertake to abide by the Law of network information security with regard to the sale, exportation and importation of civil cryptography products.

LIST OF CIVIL CRYPTOGRAPHY PRODUCTS TO BE LICENSED FOR EXPORT/ IMPORT

 (enclosed to the Application for licensing of exportation/ importation of civil cryptography products n^o …. by ….)

Note: (*) Technical regulations only apply to imports.

Form No. 05

LICENSE

FOR EXPORTATION/ IMPORTATION OF CIVIL CRYPTOGRAPHY PRODUCTS

HEAD OF GOVERNMENT CIPHER COMMITTEE

Pursuant to the Law on network information security dated November 19, 2015;

Pursuant to the Government’s Decree No. … dated … 2016 on the sale and provision of civil cryptography products and services and the exportation and importation of civil cryptography products;

In view of the application by ….. ¹ for licensing of exportation/ importation of civil cryptography products;

At the request of the Head of the Department of Civil Cryptography Management and Cryptographic Product Testing,

HEREBY DECIDES:

Article 1. ......................................................................................................................... ¹

Head office address: ........................................................................................................

Telephone: ………………………………………… Facsimile: ............................................

Certificate of business registration/ Certificate of investment registration no. …. as issued by ……. on ... ... ... [date]

Is licensed to export/ import civil cryptography products according to the list enclosed to this license.

Article 2. ……………….. must abide by the Law on network information security and the Government's Decree No. .... dated ... 2016 on the sale and provision of civil cryptography products and services and the exportation and importation of civil cryptography products.

Article 3. This license for exportation/ importation of civil cryptography products is valid from … … … [date] to … … … [date]². This license replaces the license for exportation/ importation of civil cryptography products n^o …. /GPXNK-BCY as issued by the Government Cipher Committee on ... [date]./

_______________

¹ Name of the enterprise licensed.

² For an application for amendment, re-issuance or extension of the License.

LIST

CIVIL CRYPTOGRAPHY PRODUCTS LICENSED
(Enclosed to the License for exportation/ importation of civil cryptography products n^o......../GPXNKMMDS-BCY as issued by the Government Cipher Committee on .... [date]