Criminal procedure for IPR enforcement in Vietnam
A provincial People’s Court is entitled to hear criminal cases related to defendants, crime victims or litigants who live abroad or in connection with property involved in other lawsuits occurring on foreign territories (Article 268.2 (b), Criminal Procedure Code 2015). As regards territorial jurisdiction, a Court, whose location is most adjacent to the scene of a crime, shall have jurisdiction over the criminal lawsuit against that crime.
Flowchart of handling IPR infringement under criminal proceedings in Vietnam as follow: (download)
Under the Criminal Procedure Code and the Penal Code, an IP criminal case shall only be instituted at the request of the IPR holders of copyright & related rights, trademarks and geographical indications as the victim of an IP criminal case.
To handle an infringer for his/her infringement act over rights to copyright & related rights, trademarks and geographical indications rights under criminal procedure, the following actions shall be taken:
(i) Institution of a criminal case (Articles 143-162, Criminal Procedure Code 2015):
- The right holder files a petition for handling IPR infringement under criminal proceedings. The petition will then be checked to figure out if the documents/evidence are sufficiently provided. If the Petition lacks required documents/evidence, the enforcement authority will require additional evidence/explanation case (Article 27.3, Decree No. 105/2006/ND-CP). A refusal to settle the case if failure to submit required documents/ evidence (Article 27.4, Decree No. 105/2006/ND-CP)
- Administrative enforcement authorities (e.g. i) Inspectors of Science and Technology; (ii) Inspectors of Culture, Sports and Tourism; (iii) Market Control Agencies; (iv) Economic Police; and (v) Customs authority), if finding that the case contains sign of a criminal, will forward the case to criminal procedure agencies for investigation and initiation of a criminal lawsuit (Article 62, Law No. 15/2012/QH13 on handling of administrative violation).
(ii) Investigation of a criminal case (Articles 163-178, Criminal Procedure Code 2015):
The time limit for a criminal investigation shall not exceed 02 months for misdemeanors, 03 months for felonies and 04 months for horrific and extremely severe felonies (Article 172, Criminal Procedure Code 2015).
(iii) Issuance of a decision by procuracy to prosecute the accused before court by an indictment (Article 179-184, Criminal Procedure Code 2015):
- If a sign of criminal is found, a decision by procuracy to prosecute the accused before court by an indictment will be issued and a criminal case will initiated/prosecuted.
- 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 case to and request the competent administrative enforcement authority to impose an administrative penalty on that offence.
- No criminal lawsuit is initiated in some circumstances (Article 157, Criminal Procedure Code 2015) such as (i) criminal acts do not exist, (ii) acts do not constitute crime, (iii) persons committing dangerous acts against the society have not reached the age of criminal responsibility, (iv) persons whose criminal acts have been sentenced or lawsuits have been dismissed validly, (v) the prescriptive period for criminal prosecution passes, (vi) general amnesty has been granted, (vii) the person causing peril against the society is deceased, unless other persons must undergo reopening procedure, (viii) the crime victim or its representative does not petition for charges against offences.
- The investigation will be suspended if the petitioner withdraws his petition for charges and grounds for initiating criminal lawsuit are not established per Article 157, Criminal Procedure Code 2015.
- The case is suspended in the circumstances as provided under Article 247 (Suspension of cases), 248 (Dismissal of cases) and 359 (Annulment of the first-instance court’s judgment and dismissal of the case) Criminal Procedure Code 2015.
(iv) Hearing in a criminal case (at the first instance court) (Articles 268-326, Criminal Procedure Code 2015) and the appellate court (Articles 344-362, Criminal Procedure Code 2015))
(v) Execution of a criminal verdict (Law No. 41/2019/QH14 on enforcement of criminal judges, to be effective on 01 January 2020 in replacement of current Law No. 53/2010/QH12 on enforcement of criminal judges to be expired on 01 January 2020)