Chương II Nghị định 76/2018/NĐ-CP: Danh mục công nghệ, quản lý hoạt động chuyển giao công nghệ

Chapter II

LIST OF TECHNOLOGIES AND THE MANAGEMENT OF TECHNOLOGY TRANSFER

Article 3. List of technologies encouraged for transfer, list of technologies restricted from transfer and list of technologies banned from transfer.

1. This Decree is enclosed with the following lists of technologies:

a. List of technologies encouraged for transfer (Appendix I);

b. List of technologies restricted from transfer (Appendix II);

c. List of technologies banned from transfer (Appendix III);

2. Based on the economic and social development process and the governance management requirements; the ministries and ministerial agencies shall make and send lists of technologies specified in clause 1 of this Article to the Ministry of Science and Technology in order to have them consolidated by the Ministry and then amended by the Government;

Article 4. Price and payment methods for technology transfer

1. Contracting parties may sign the agreement on one of or certain payment methods as follows:

a. Payment in lump sum or installments in cash or in kind, including the payment method of paying for each unit of issue which is produced by using the transferred technology.

b. Conversion of the technology value into contributions as capital to an investment project or to an enterprise.

If the capital contribution is made by using technology funded by the State (for the technology produced by using state fund or bought by using state fund), the technology shall be valuated in accordance with laws. 

c. Payment by percentage (%) of the net selling price.

 Net selling price means the total selling price of the product or service produced by using transferred technology (determined based on the sale invoices); less VAT, excise tax, export duty (if any); expenditure on finished–products, spare parts which are imported or bought domestically; expenditure on packages, packaging expenditure, expenditure on transportation of the products to the market and advertising expenditure.  

d. Payment by percentage (%) of the net revenue.

The net revenue is determined by using revenues from selling products or services produced by using the transferred technology and by deducting the revenues such as trade discounts, sales discounts and sales returns.

dd. Payment by percentage (%) of the earnings before income taxes. 

Earnings before income taxes means the net revenue less the total reasonable expenses associated with production of products or services using the transferred technology sold in the market. Contracting parties may sign the agreement on payment method of using the earnings after income taxes.

e. Contracting parties may combine two or all of the methods specified in clause a, b, c, d and dd of this clause, or use other payment methods which comply with the regulations on technology transfer.

2. If the technology is transferred (the technology is produced by using state fund or bought by using state fund) between contracting parties with one or multiple parties use the state fund, the valuation shall be carried out based on technology valuation consultancy as prescribed by laws.

3. If the technology transfer is carried out between the parties having parent company - subsidiary company relationship and the parties having association relationship as prescribed by the law on taxation, the audit of prices shall be carried out by using the technology valuation method as prescribed by laws and as required by the tax authority.

Article 5. Registration of technology transfer

1. If the technology transfer is not required to be registered according to the regulations in clause 1, Article 31 of the Law on Technology Transfer, but the organizations or individuals still have the need to register for the technology transfer, they shall complete the procedures prescribed in the regulations in clauses 3, 4, 5 and 6 of Article 31 of the Law on Technology Transfer and the regulations hereof.

The effective date of the technology transfer agreement which is specified in this clause shall be agreed by contracting parties.  If the parties have not executed this agreement by the time of registration for the technology transfer, this agreement shall come into effect from the date on which the Technology Transfer Registration Certificate is issued.

2. The transferee receiving technology transfer from a foreign country or within Vietnam, or the transferor who transfers technology from Vietnam to a foreign country shall represent both parties to submit the application for registering the technology transfer to the competent authority mentioned in Article 6 hereof.

3. The time limit for issuing the Technology Transfer Registration Certificate:

a. Within 05 working days from the date on which the completed application documents are received as prescribed in clause 3, Article 31 of the Law on Technology Transfer, the competent authority mentioned in Article 6 hereof shall issue a Technology Transfer Registration Certificate to the applicant.

b. If the application is deemed incomplete, within 03 working days from the date on which the application is received, the competent authority shall send a written request to the applicant for providing additional documents.

c. If the contents in the application are required to be amended, within 05 working days from the date on which the application is received, the competent authority shall send a written request to the applicant for additional documents.

d. If the competent authority refuses to issue the certificate, within 05 working days from the date on which the application is received, it shall provide explanation in writing to the parties.

4. The Registration Forms for technology transfer and the Technology Transfer Registration Certificate shall be issued using form No. 1 and form No. 02 in Appendix IV hereto.

Article 6. The authority to issue Technology Transfer Registration Certificate

1. As for the technology transfer through carrying out investment project:

a. The Ministry of Science and Technology shall issue a Technology Transfer Registration Certificate to an investment project in Vietnam which is under the decision on policy of investment of the National Assembly, Prime Minister, ministries and central government authorities as prescribed in the regulations of the law on investment, of the law on public investment and the law on outward investment projects.

b. The Department of Science and Technology shall issue a Technology Transfer Registration Certificate to an investment project within the areas managed in accordance with the decision on policy of investment of the People’s Councils, People’s Committees, Manage Boards of industrial parks, of export processing zones, of hi-tech parks and of economics zones as prescribed in the law on investment and the law on public investment; to the project required to register for Technology Transfer Registration Certificate but is not required to obtain a decision on policy of investment of the regulatory agency; to the cases where the applicants choose to register in accordance with clause 2, Article 31 of the Law on Technology Transfer. 

2. As for the independent technology transfer and other forms as prescribed by laws:

a. The Ministry of Science and Technology shall issue a Technology Transfer Registration Certificate to the applicant who transfers technology from a foreign country to Vietnam or from Vietnam to a foreign country.

b. The Department of Science and Technology shall issue a Technology Transfer Registration Certificate to the applicant who transfers technology within Vietnam by using state fund or state budget, and to the applicant who falls into the case mentioned in clause 2 Article 31 of the Law on Technology.

3. The Ministry of National Defense shall issue the Technology Transfer Registration Certificate to the cases where the technology transfer is on the list of national defense secrets or on the list of properties procured by using national defense's special budget.

4. The authority to issue the Certificate of Registration of Technology Transfer Extension (hereinafter referred to as "Extension Certificate”) to the cases mentioned in clause 1 and clause 2, Article 42 hereof shall be carried out in accordance with the regulations in clause 1, 2 and 3 hereof.

5. The Department of Science and Technology shall send a report on the technology transfer process to the Ministry of Science and Technology before December 31 every year; the reporting data shall be made from December 15 of the previous year to December 14 of the reporting year.  The report on the technology transfer process shall be made by using form No. 10 in Appendix IV hereto.

Article 7. Reimbursement of supports or incentives

1. The organizations or individuals who received supports or incentives through technology transfer shall reimburse these supports or incentives to the state budget if the Technology Transfer Registration Certificate is nullified in accordance with clause 2, Article 32 of the Law on Technology Transfer.

2. Within 05 working days from the date on which the Technology Transfer Registration Certificate is nullified, the agency that issues this certificate shall send a written notification to the organizations or individuals, financial management agencies at the same level and the competent agencies which make decisions on providing supports or incentives to the organizations or individuals as prescribed by laws, and shall post this notification on its website.

Within 05 working days from the date on which the notification of nullification of the Technology Transfer Registration Certificate is received, the financial management agency and the competent authority which provide supports or incentives for the organizations or individuals shall send a notification to the aforesaid organizations or individuals to request for the reimbursement of supports and incentives as prescribed by laws.

3. Within 20 working days from the date on which the notification of the reimbursement of supports or incentives is received, the organizations or individuals who have the Technology Transfer Registration Certificate nullified shall reimburse the fund in full to the State Budget through the state treasury.

If the organizations or individuals do not reimburse the supports or incentives on time, this case shall be handled in accordance with the relevant regulations of laws.

4. The relevant organizations shall include the report on the process of reimbursement to the state fund budget in their annual final accounts and/or annual financial statements as prescribed by laws.