Criminal punishment shall be applied to those person who deliberately commit acts of infringement of the copyright, related rights and industrial property rights to the trademarks and geographical indications being protected in Vietnam at the commercial scale.
Upon detecting a sign of an IPR infringement offence under Articles 170a and 171 of the Penal Code, the right holder might request the proceeding performing agencies to initiate a criminal lawsuit for settlement.
CHART OF IPR INFRINGEMENT SETTLEMENT BY WAY OF CRIMINAL MEASURES
|(1)||The Right holder or his representative (Article 198 of the IP Law, Article 21, Article 22 of Decree 105/2006/NĐ-CP), prosecution shall only be made at the request of the Right holder (Article 105 of the Criminal Procedure Code).|
|(2)||Agencies authorized to deal with infringements by way of administrative procedures including:
(i) Inspectors of Science and Technology;
(ii) Inspectors of Culture, Sports and Tourism;
(iii) Market Control Agencies;
(iv) Economic Police; and (v) Customs authority.
(i) evidence proving the right holder status of the applicant,
(ii) information about the suspected goods or in order to detect IPR infringing goods (Article 23,Article 24, Article 25 of Decree 105/2006/NĐ-CP).
|(4)||If the application for settlement of the infringement lacks some required documents, evidence and exhibits, the infringement settlement agency shall request the applicant for additional documents and evidence (clause 3, Article 27 of Decree 105/2006/NĐ-CP).|
|(5)||If the requirements in point (4) above are not met (clause 4, Article 27 of Decree 105/2006/NĐ-CP).|
|(6)||An agency referred to in point (2) forwards the case file that contains signs of a criminal for criminal prosecution purpose (Article 62 of the Ordinance on Dealing with Administrative Offences, clause 8, Article 2 of Decree 106/NĐ-CP).|
|(7)||Investigation time limit (Article 119 of the Criminal Procedure Code)|
|(8)||If there is no sign of a criminal but a sign of an administrative offence, the proceeding performing agency (under criminal procedures) shall forward the file of the offence to and request the competent person referred to in point (2) to impose an administrative penalty on that offence (Article 63 of the Ordinance on dealing with administrative offences).|
|(9)||No prosecution shall be made when:
(i) there is no offence,
(ii) the act does not constitute a criminal,
(iii) the person committing an act dangerous to the society is not old enough to bear the criminal liability,
(iv) the person’s criminal act has been subject to a legally binding judgment or a decision cancelling the case,
(v) the statute of limitations period for prosecuting criminal liability has expired,
(vi) the criminal has been given a general amnesty,
(vii) the person committing an act dangerous to the society has died, unless where it is necessary to appeal against another person (Article 107 of the Criminal Procedure Code).
(i) the applicant for prosecution withdraws his request before the opening of the first instance court session(clause 2 of Article 105),(ii) in any cases referred to in point (9),
(iii) the doer voluntarily terminates his criminal act halfway,
(iv) the criminal is exempt from criminal liability,
(v) the criminal is a juvenilei,
(vi) the investigation time limit has expired but it is impossible to prove the accused person guilty (clause 2, Article 105, Article 107 of the Criminal Procedure Code, Article 19 Article 25, clause 2 of Article 69 of the Criminal Code, clause 2, Article 164 of the Criminal Procedure Code).
|(11)||In any cases referred to in point(10)(Article 169, Article 180, Article 251 of the Criminal Procedure Code).|