Nghị định 116/2005/ND-CP

Decree No. 116/2005/ND-CP of September 15th, 2005, detailing the implementation of a number of articles of the Competition Law.

Nội dung toàn văn Decree No. 116/2005/ND-CP of September 15th, 2005, detailing the implementation of a number of articles of the Competition Law.


THE GOVERNMENT

SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness

No. 116/2005/ND-CP

Hanoi , September 15th, 2005

 

DECREE

DETAILING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE COMPETITION LAW

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the December 3,2004 Competition Law;
Pursuant to the August 28,2001 Ordinance on Charges and Fees;
Pursuant to the July 2, 2002 Ordinance on Handling of Administrative Violations;
At the proposal of the Trade Minister after consulting the President of the Supreme Peoples Court,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Scope and subjects of application

This Decree provides in detail for the implementation of a number of articles of the Competition Law regarding control of competition-restricting acts and competition proceedings.

Article 2. Subjects of application

This decree shall apply to business organizations and individuals (hereinafter referred to as enterprises) and professional associations operating in Vietnam, as provided for in Article 2 of the Competition Law.

Article 3. Responsibility to supply information

State agencies, financial, credit, accounting and audit institutions, other organizations and individuals involved in competition cases or procedures for implementation of exemptions shall have to supply full, truthful and accurate necessary information in a timely manner at the request of the competition-managing agency or the Competition Council.

Chapter II

CONTROL OF COMPETITION-RESTRICTING ACTS

Section 1. DEFINITION OF RELEVANT MARKETS

Article 4. Definition of relevant product markets

1. A relevant product market is a market of products or services which are interchangeable in terms of characteristics intended use and price.

2. Characteristics of a product or service shall be identified on one or more of the following grounds:

a. Physic characteristics;

b. Chemical characteristics;

c. Technical properties;

d. Side effects on users;

e. Absorbability.

3. Intended use of a product or service shall be determined as its most principal intended use.

4. The price of a product or service is the price written in its retail invoice according to the provisions of law.

5. The interchangeability of a product or service shall be defined as follows:

a. Products or services shall be regarded as interchangeable in characteristics if they have many similar physic, chemical characteristics, technical properties, side effects on users and absorbability;

b. Products or services shall be regarded as interchangeable in intended use if they have similar intended use if they have similar intended uses;

c. Products or services shall be regarded as interchangeable in price if, in case of an increase of over 10% I the prices of such products or services which is maintained for six consecutive months, over 50% of a random sample of 1,000 consumers living in a relevant geographical area switch or intend to buy other products or services with the characteristics or intended use similar to products or services which they are using or intend to use.

In case the number of consumers living in a relevant geographical market stated at this Point is less than 1,000, a random sample must include at least 50% of the number of such consumers.

6. In case of the result of definition of the interchangeability of products or services by the method defined in Clause 5 of this Article is insufficient for reaching a conclusion on the interchangeability of such products or services, the competition-managing agency or the competition case-handling panel may additionally consider one or more of the following factors for defining the interchangeability of products or services:

a. The rate of change in the demand for a product or service as a result of a change in the price of another product or service;

b. The length of time required for the supply of a product or service to the market when there is a sudden increase in demand;

c. The duration of use of a product or service;

d. The supply substitutability under the provisions of Article 6 of this Decree.

7. In case of necessity, the competition-managing agency or the competition case- handling panel may identify an additional group of consumers living the relevant geographical area who cannot switch to buy another product or service which has characteristics and intended user similar to the product or service they are using or intend to use in case of an increase of over 10% in the price of such product or service, which is maintained for six consecutive months.

Article 5. Definition of relevant product market in special cases

1. A relevant product market may be defined to be the market of a specific product or a group of specific products based on the market structure and consumer practices.

2. When defining a relevant product market in the case specified in Clause 10 of this Article, the market of products complementary to the relevant product may be taken into consideration.

Products shall be regarded as complementary to the relevant product if an increase or decrease in their price will result in a corresponding increase or decrease in the relevant product.

Article 6. Determination of supply substitutability

Supply substitutability is the capacity of an enterprise that is producing or distributing a product or service to produce or distribute another product or service, in case of a price increase of such product or service, within a short period of time without incurring significant costs.

Article 7. Definition of relevant geographical market

1. Relevant geographical market means a specific geographical area where exist products or services which are interchangeable under similar conditions of competition, and which is considerably differentiated from neighboring areas.

2. The boundaries of a geographical area defined in clause 1 of this Article shall be determined on the following grounds:

a. A geographical area where a business establishment of another enterprise participating in the distribution of the relevant product is base;

b. A business establishment of another enterprise is based in a neighboring area sufficiently close to the geographical area defined at Point a of this clause for its participation in the distribution of the relevant product in such geographical area;

c. Transportation costs in the geographical area defined in clause 1 of this Article;

d. The tome of transportation costs in the geographical area defined in clause 1 of this Article;

e. Barriers to market entry.

3. A geographical area may be considered having similar competition conditions and being significantly differentiated from neighboring geographical areas if it satisfies one of the following criteria:

a. Transportation cost and time will result in an increase of no more than 10% in the retail prices of products;

b. There exists one of the barriers to market entry as specified in Article 8 of this decree.

Article 8. Barriers to market entry

Barriers to market entry include:

1. Inventions, utility solutions, industrial designs, marks, geographical indications according to the provisions of law on industrial property.

2. Financial barriers, including costs of investment in production, distribution, trade promotion or accessibility to financing sources.

3. Administrative decisions of state management agencies.

4. Regulations on conditions on trading and use of goods or services, professional standards.

5. Import duties and import quotas.

6. Consumer practices

7. Other barriers to market entry.

Section 2. DETERMINATION OF SALES TURNOVER, PURCHASE TURNOVER, MARKET SHARES FOR CONTROL OF COMPETITION-RESTRICTING ACTS

Article 9. Sales turnover, purchase turnover for determining market shares of enterprises.

An enterprises sales turnover or purchase turnover with respect to a product or service shall be determined in accordance with the provisions of law on tax, accounting standards of Vietnam and the provisions of Article 10,11 and 12 of this Decree.

Article 10. Sales turnover, purchase turnover for determining market shares of groups of enterprises which are directly organizationally and financially associated.

1. A group of enterprise shall be regarded as directly organizationally and financially associated (hereinafter collectively referred to as group of associated enterprises) if it has a common executive body and its capital invested by this body.

2. Sales turnover, purchase turnover with respect to a product or service for determining the market share of a group of associated enterprises shall be the aggregate of sales turnovers or purchase turnovers with respect to such product or service of all member enterprises and non-business units operating according to the assignment of the common executive body defined in clause 1 of this Article.

Sales turnover or purchase turnover with respect to a product or service of a group of associated enterprises shall not include turnover from the sale of the product or the provision of the service between the common executive body and member enterprises or non-business units operating according to the assignment of the common executive body defined in this Clause.

Article 11. Turnover for determining market shares of insurance enterprises

Turnover determining the market share of an insurance enterprise shall be the aggregate of insurance premiums and re-insurance premiums received in a fiscal year, turnover for determining its market share shall be the total of insurance premium and re-insurance premiums received in a month or a quarter counting from the time the insurance enterprise starts to operate to the time of determining its market share according to the provisions of Article 13 of this Decree.

Article 12. Turnover for determining market shares of credit institutions.

Turnover for determining the market share of a credit institution shall be the aggregate of the following incomes:

1. Interests.

2. Service charges.

3. Incomes from foreign exchange dealings.

4. Profits from contributed capital and/or purchased shares.

5. Incomes from other business operations.

6. Other incomes.

Article 13. Determination of market shares of enterprises on relevant markets

1. The market share of an enterprise with respect to a certain product or service on a relevant market shall be determined under the provisions of Clause 5, Article 3 of the Competition Law, except for cases specified in Clauses 2 and 3 of this Article.

2. The market share of a newly established enterprise which has conducted business operations for less than one fiscal year before joining an economic concentration shall be its market share on the relevant market in a month or a quarter counting from the time the enterprise starts operation to the time one month before the date indicated in the notice on its joining in the economic concentration.

3. The market share stated in the exemption application dossier of a newly established enterprise which has conducted business operations for less than one fiscal year shall be its market share on the relevant market in a month or a quarter counting from the time the enterprise starts operation to the time one month before the date indicated in the exemption application.

Section 3. COMPETITION RESTRICTION AGREEMENTS

Article 14. Agreements on directly or indirectly fixing product or service prices

An agreement on directly or indirectly fixing the price of a product or service is an agreement on concerted practices in one of the following forms:

1. Application of a sing le price to some or all customers.

2. Price increase or decrease at a given level.

3. Application of a common pricing formula.

4. Maintenance of a fixed price rate of the relevant product.

5. Offer of no price discount or application of a uniform price discount.

6. Offer of credit quotas to customers.

7. No price decrease unless other parties to the agreement are notified thereof.

8. Use of a uniform price at the time when price negotiations start.

Article 15. Agreements on sharing of outlets, sources of supply of products, provision of services

1. An agreement on sharing of outlets is an agreement on the volume of products or services; place of purchases and sale of products or services, group of customers for each party to the agreement.

2. An agreement on sharing of the source of supply of products or provision of services is an agreement whereby each party may purchase products or services only from one or some given sources.

Article 15. Agreements on sharing of outlets, sources of supply of products, provision of services

Article 16. Agreements on restriction or control of produced, purchased or sold quantities or volumes of products or services

1. An agreement on restriction of produced, purchased or sold quantities or volumes of products or services is an agreement to cut or reduce the produced, purchased or sold quantity or volume of goods or services on a relevant market, compared to before.

2. An agreement on control of produced, purchased or sold quantities or volumes of products or services is an agreement to fix the produced, purchased or sold quantity or volume of goods of services at a level sufficient to create their scarcity on a market.

Article 17. Agreements on restriction of technical, technological developments, restriction of investments

1. An agreement on restriction of technical, technological inventions is an agreement to purchase inventions, utility solutions or industrial designs for destruction or non-use thereof.

2. An agreement on restriction of investments is an agreement not to increase capital for production expansion or improvement of the product or service quality or for other expansion or development.

Article 18. Agreements on imposition on other enterprises of conditions for signing product or service purchase or sale contracts or on forcing of other enterprises to accept obligations not directly connected with the object of such contracts

1. An agreement on imposition on other enterprises of conditions for signing a product or service purchase or sale contract is an agreement to impose one or some of the following pre-conditions before signing a contract;

a. Restriction of production or distribution of other products; purchase or provision of other services not directly related to the commitments of the agent according to the provisions of law on agency;

b. Restriction of the place for re-sale of products, except for products on the list of those subject to conditional business or restricted business according to the provisions of law;

c. Restriction of customers who can purchase products for resale, except for products stated at Point b of this Clause;

d. Restriction of the form and quantity of products to be supplied.

2. An agreement on forcing of another enterprise to accept obligations not directly connected with the object of the contract is an agreement binding another enterprise, when purchasing or selling the product or service with any enterprise being a party to the agreement, to purchase other products or services from a designated supplier or person or to perform one obligation or some obligations unnecessary for the performance of the contract.

Article 19. Agreements on prevention, restraint or prohibition of other enterprises from entering the market or developing business

1. An agreement on prevention, restraint or prohibition of another enterprise from entering a market is an agreement not to transact with an enterprise not being a party to the agreement or to take concerted practices in one of the following forms:

a. Requesting, appealing, inducing ones customers not to purchase, sell product or not to use services of an enterprise not being a party to the agreement;

b. Purchasing, selling products or services at a price sufficient for rendering an enterprise not being a party to the agreement unable to enter the relevant market.

2. an agreement on prevention, restraint or prohibition of another enterprise from developing business is an agreement not to transact with an enterprise not being a party to the agreement or to take concerted practices in one of the following forms:

a. Requesting appealing, inducing distributors or retailers that are transacting with the parties to the agreement to discriminate, when purchasing or selling products, against an enterprise not being a party to the agreement in a way that causes difficulties to this enterprises in consuming products;

b. Purchasing, selling products or services at a price sufficient for rendering an enterprise not being a party to the agreement unable to expand its business operation.

Article 20. Agreements on elimination from the market of enterprises not being parties to the agreements

Agreements on elimination from the market of enterprises not being parties to the agreement is an agreement not to enter into transactions with enterprises not being parties to the agreement while taking concerted practices in a form specified at Point a, Clause 1 and Clause 2, Article 19 of this decree, or to purchase or sell products or services at a price sufficient for rendering such enterprises to withdraw from the relevant market.

Article 21. Collusion to help one or all of the parties to an agreement to win bids for supply of products or provision of services

Collusion to help one or all of the parties to an agreement to win bids for supply of products or provision of services is an agreement to take concerted practices in one of the following forms in a biding:

1. One or more parties to an agreement withdraw from participating in the bidding or retract their bids already submitted so that one or more parties to the agreement win the bid.

2. One or more parties to an agreement cause difficulties to non-parties to the agreement which participate in a bidding, by refusing to supply raw materials or to sign subcontracts or otherwise.

3. All parties to an agreement agree to offer non-competitive bids or competitive bids accompanied with conditions unacceptable to the bid inviter so as to pre-determine one or more parties that will win the bid.

4. All parties to an agreement pre-determine the number of times each party will win the bid for a given period of time.

5. Other acts prohibited by law.

Section 4. A BUSE OF DOMINANT MARKET POSITION, ABUSE OF MONOPOLY POSITION

Article 22. Grounds for determining the capability of enterprises to significantly restrict competition on relevant markets.

The capability of an enterprise to significantly restrict competition on a relevant market shall be determined on one or some of the following major grounds:

1. Financial capability of the enterprise.

2. Financial capability of the economic organization or individual that has established the enterprise.

3. Financial capability of the organization or individual that has the right to control or dominate the operation of the enterprise according to the provisions of law or the enterprises charter.

4. Financial capability of the parent company.

5. Technological capability.

6. The right to own or use industrial property objects.

7. The scope of the distribution network.

Article 23. Sale of products, provision of services below total costs of production in order to eliminate competitors

1. Except for cases specified in Clause 2 of this Article, the sale of products or provision of services below total costs of production in order to eliminate competitors is the sale of products or provision of services at prices lower than the aggregate of the following costs:

a. Expenses constituting cost of production of products or services as provided for in Article 24 of this Decree, or prices of purchasing goods for resale;

b. Costs of circulation of products or services as provided in Article 25 of this Decree.

2. The following acts shall not be regarded as selling products below costs of production in order to eliminate competitors:

a. Reducing the prices of fresh, live products;

b. Reducing the selling prices of products in stock which are deteriorated in quality, obsolete in form and no longer suitable to consumer staste;

c. Reducing the selling prices of products on a seasonal basis;

d. Reducing the selling prices of products under promotion programs according to the provisions of law;

e. Reducing the selling prices in case of bankruptcy, dissolution, termination of production, business activities, relocation, change of production, business orientations;

f. Measures applied by the State to implement price stabilization policies in accordance with current provision of law on prices.

3. In cases of reducing selling prices specified in Clause 2 of this Article, old prices, new prices and the period when reduced prices are applied must be publicly and clearly posted up at shops and transaction places.

Article 24. Costs of production of products or services

Cost of production of products or services include the following direct expenses:

1. Direct costs of supplies, including costs of raw materials, materials, fuels and motive force directly consumed for production of products or services of the enterprise.

2. Direct costs of labor, including amounts payable to laborers personally engaged in production, such as salaries, wages and allowances of salary nature, expenses for mid-working shift meals, social insurance and medical insurance premiums, trade union dues for workers.

3. General costs of production, including general costs arising at workshops and business sections of the enterprise, such as salaries, allowances, mid-working shift meals money paid to workshop employees, costs of materials, tools and instruments of production used in workshops, depreciation of fixed assets, expenses for the lease of workshops, expenses for services for service purchased from outside, and cash expenses other than the aforesaid expenses.

Article 25. Costs of circulation of products and services

Cost of circulation of products and services shall cover the following costs arising from the the process of product consumption or service provision:

1. Salaries.

2. Allowances payable to salespersons.

3. Agent commissions, broker commission.

4. Marketing.

5. Packaging.

6. Wrapping.

7. Transportation.

8. Preservation.

9. Depreciation of fixed assets.

10. Materials.

11. Tools, utensils.

12. Loading and unloading of products.

13. Services purchased from outside.

14. Social insurance premiums, medical insurance premiums, trade union dues payable for salespersons according to the provisions of law.

15. Interests on business loans.

16. Enterprise management expenses allocated to the circulation of products, services.

17. Product warranty expenses.

18. Advertisement expenses.

19. Other cash expenses according to the provisions of law.

Article 26. Enterprise management expense.

Enterprise management expense is the sum of business management expenses, administrative management expenses and other general expenses related to activities of the whole enterprise, including:

1. Salaries and allowances, mid-working shift meal money payable to the directorate and managerial staff in different sections and units, insurance premiums and trade union dues payable for all managerial personnel of the enterprise.

2. Costs of office supplies, depreciation of fixed assets commonly used for the enterprise, taxes, fees and expenses for services purchased from outside for the enterprises office, and other cash expenses for the whole enterprise as follows:

a. Provisions for bad debts, provisions for decreases in the prices of goods in stock, audit charge, expenses for receptions, celebrations, working mission allowances, severance allowances for laborers; expenses for scientific research, research for technology renewal, expenses for innovations, expenses for training to raise job skills for workers, training in managerial capability.

b. Healthcare expenses for laborers;

c. Expenses for environmental protection;

d. Expenses for female laborers;

e. Expenses for enterprise guard.

3. Payment of loan interests.

Article 27. Imposition of irrational purchase prices, sale prices of products or services or fixing of minimum re-sale prices causing damage to customers

1. Acts of imposing purchase prices of products or services shall be regarded as irrational, causing damage to customers if purchase prices imposed on the same relevant market are lower than the cost of production of products or services under the following conditions:

a. The quality of products or services for which purchase orders are placed is not inferior than that of previously purchased products or services;

b. There was no economic crisis, natural calamity, enemy sabotage or abnormal fluctuation that caused the wholesale price of provision of the service on the relevant market to fall under the costs of production within the minimum period of 60 consecutive days, compared to before.

2. Acts of imposing sale prices of products or services shall be regarded as irrational, causing damage to customers if the demand for such products or services sees no sudden increase in excess of the design capacity or production capacity of the enterprise and the following conditions are satisfied:

a. The average retail price on the same relevant market within the minimum period of 60 consecutive days has been increased more than 5% or increase exceeding 5% compared with the actual sale price before such minimum period of time;

b. There is no abnormal fluctuation resulting in an increase of more than 5% in the costs of production of the product or service concerned within the minimum period of 60 consecutive days before the price is increased.

3. Fixing the minimum resale price, causing damage to customers, is an act of prohibiting distributors and retailers to resell products at a price lower than the pre-fixed price.

Article 28. Restriction of production, distribution of products, services, limitation of markets, obstruction of technical and technological developments, causing damage to customers

1. Restriction of the production or distribution of a product or service, causing damage to customers is an act of:

a. Cutting or reducing the volume of a product or service supplied on the relevant market compared to the previously supplied volume of the product or service while there is no significant fluctuation in the demand-supply relation; there is no economic crisis, natural calamity or enemy sabotage; there is no big technical incident; or there is no state of emergency;

b. Fixing the supplied volume of a product or service at a level sufficient for creating a scarcity on the market;

c. Stockpiling the product to destabilize the market.

2. Limitation of the market, causing damage to customers is an act of:

a. Supplying a product or service only within one or some certain geographical areas;

b. Buying a product or service only from one or some certain supplying sources, except for the case where other supplying sources fail to meet reasonable conditions imposed by the buyer in conformity with normal practices.

3. Obstruction of technological developments, causing damage to customers is an act of:

a. Buying an innovation, utility solution or industrial design for destruction or non-use;

b. Threatening or compelling those who are doing a research for technical or technological developments to stop or cancel such research.

Article 29. Imposition of different trading conditions under similar transaction conditions in order to create unfair competitions

Imposition of different trading conditions under similar transaction condition in order to create unfair competition is an act of discriminating against enterprises regarding purchase or sale conditions, price, payment deadline and quantity in transactions of purchasing or selling products or services which are similar in value or characteristics so as to place one or some enterprises in a competition position more advantageous than other enterprises.

Article 30. Imposition of conditions on other enterprises to sign contracts for purchase or sale of products or services or forcing of other enterprises to accept obligations not directly related to the objects of contracts

1. Imposition of conditions on other enterprises to sign contracts for purchase or sale of products or services is the imposition of the following pre-conditions before signing contract:

a. Restrictions on production or distribution of other products; purchase or provision of other services not directly related to the commitments of the agents according to the provisions of law on agency;

b. Restrictions on places for resale of products, except for goods on the list of those subject to business conditions, goods subject to restricted business according to the provisions of law;

c. Restrictions on customers that buy products for resale, except for goods stated at Point b of this Clause;

d. Restrictions on the form and quantity of products allowed to be supplied.

2. Forcing of other enterprises to accept obligations not directly related to the object of the contract is an act of linking the purchase or sale of a product or service being the object of the contract with the compulsory purchase of another product or service from a designated supplier or person or with the performance of one or more obligations beyond the necessary scope of performing the contract.

Article 31. Prohibition of new competitors from entering the market

Prohibition of new competitors from entering the market is an act of creating the following barriers:

1. Requesting ones customers not to enter into transactions with new competitors.

2. Threatening or forcing distributors and retail shops not to distribute products of new competitors.

3. Selling products at a price sufficient for rendering competitors unable to enter the market, which, however, does not fall into the case specified in Article 23 of this Decree.

Article 32. Imposition of unfavorable conditions on customers by enterprises having monopoly positions

Imposition of unfavorable conditions on customers by enterprises having monopoly positions is an act of forcing customers to unconditionally accept obligations causing difficulties to customers in the process of performing contracts.

Article 33. Abuse of monopoly position to unilaterally modify or cancel signed contrasts without plausible reasons

Abuse of monopoly position to unilaterally modify or cancel signed contracts without plausible reasons is an act performed by an enterprise holding a monopoly position in one of the following forms:

1. Unilaterally modifying or canceling signed contracts without having to notify in advance customers thereof and without facing any penalty.

2. Unilaterally modifying or canceling signed contracts on the basis of one or more grounds not related to the conditions necessary for the continued performance of the contract, without facing any penalty.

Section 5. ECONOMIC CONCENTRATIONS

Article 34. Control or domination of all or one of trades of other enterprises

Control or domination of all or one of trades of other enterprises as provided for in Clause 3, Article 17 of the Competition Law is the case where an enterprise (hereinafter referred to as controlling enterprise) acquires the right to own the assets of another enterprise (hereinafter referred to as controlled enterprise) which is sufficient for holding over 50% of the voting right in the shareholders congress or the management board or is at a level which, as provided for by law or the controlled enterprises charter, is sufficient for the controlling enterprise to dominate financial policies as well as the operation of the controlled enterprise for the purpose of obtaining economic benefits from business operations of the controlled enterprise.

Article 35. Acquisition of other enterprises which is not regarded as economic concentration

1. The case where an insurance enterprise or a credit institution acquires another enterprise for the purpose of resale within the maximum period of one year shall not be regarded as economic concentration if the acquiring enterprise does not exercise the right to control or dominate the acquired or only exercises this right in a compulsory manner in order to achieve the resale purpose.

2. The insurance enterprise or credit institution stated in Clause 1 of this Article must send to the competition-managing agency an acquisition notification dossier with the contents specified in Clause 1, Article 21 of the Competition Law.

3. The time limit for resale of enterprises specified in Clause 1 of this Article may be extended by the head of the competition-managing agency at the proposal of the acquiring enterprise if it proves that it cannot resell the acquired enterprise within one year.

Article 36. Enterprises in danger of dissolution or falling into bankruptcy

1. An enterprise in danger of dissolution is an enterprise which falls into the case of dissolution as provided for by law or its charter but has not yet carried out dissolution procedures but a dissolution decision has not yet been issued by a competent agency according to the provisions of law.

2. An enterprise falling into bankruptcy is an enterprise as provided for by the Bankruptcy Law.

Article 37. Financial statements in economic concentration notification dossiers for newly established enterprises which have carried out business activities for less than one fiscal year

Financial statements in an economic concentration notification dossier of an enterprise joining an economic concentration which is newly established and has carried out business activities for less than one fiscal year may be substituted with the following documents:

1. Written declaration of the charter capital, fixed assets, movable assets and amounts due to it, with the certification of an independent audit organization according to the provisions of law.

2. Written declaration of taxes paid within the period from the time the enterprise starts operation to the time one month before the enterprise is required to make financial statements for notifying the economic concentration.

Article 38. Replies to economics-concentration notifications

1. Replies to economics-concentration notifications shall be issued in writing.

2. The competition-managing agencys written replies to economic-concentration notifications must be addressed to the following:

a. The business registration agency and other agencies competent to permit merger, consolidation, acquisition or joint venture according to the provisions of law;

b. Lawful representatives of the parties to economic concentrations;

c. Parties to economic concentrations.

Section 6. PROCEDURES FOR IMPLEMENTATION OF EXEMPTIONS

Article 39. Financial statements in exemption application dossiers for newly established enterprises which have carried out business activities for less than one fiscal year

For newly established enterprise which have carried out business activities for less then one fiscal year, financial statements in their exemption application dossiers may be substituted with the following documents:

1. Documents stated in clause 1, Article 37 of this Decree.

2. Written declaration of taxes paid within the period from the time the enterprise starts operation to the time one month before the date of making of the exemption application.

Article 40. Explanatory reports in exemption application dossiers.

1. Explanatory reports on the satisfaction of conditions for exemption specified in clause 1, Article 10 and Clause 2, Article 19 of the Competition Law must be expressed in the form of feasibility study schemes conducted or evaluated by scientific and technological organizations or research and development organizations established under the June 9,2000 Law on science and Technology.

2. Explanatory reports on the satisfaction of conditions for exemption specified in clause 1, article 19 of the Competition Law must prove that one or more parties to economic concentrations are in danger of dissolution of falling into bankruptcy in accordance with the provisions of article 36 of this Decree.

Article 41. Responsibility for evaluating exemption application dossiers

1. Where an economic concentration falls within the scope of the exemption-granting competence of the Trade Minister, the competition-managing agency shall have to evaluate the exemption application dossier and submit it to the Trade Minister for decision on the grant of exemption within the time limit specified in Clause 1 and 2, Article 34 of the Competition Law.

2. Where an economic concentration falls within the scope of the exemption-granting competence of the Prime Minister, the competition-managing agency shall have to evaluate the exemption application dossier and propose the Trade Minister to send a written request to concerned ministries, ministerial-level agencies, Government attached agencies, other agencies and organizations for their opinions on this case within 50 days as from the date of receipt of the complete dossier. For complicated cases, this time limit shall be 100 days.

Within 15 days as from the date of receipt of the written request from the Trade Ministry for opinions on the exemption application case, the consulted agencies and organizations shall have to study and send their opinions in writing to the competition-managing agency.

Within 15 days as from the date of receipt of the opinions of the consulted agencies and organizations, the competition-managing agency must sum up these opinions and prepare a draft evaluation document for the Trade Minister to submit it to the Prime Minister for consideration and decision.

Article 42. Principal contents of documents on evaluation of exemption application dossiers

A document on the evaluation of an exemption application dossier shall contain the following principal contents:

1. The consistency of the explanatory report with the satisfaction of conditions for exemption for a given period.

2. Issues on which opinions remain divergent and solutions.

3. Proposals of the competition-managing agency or the Trade Minister regarding the case of economic concentration falling within the exemption-granting competence of the Prime Minister.

Article 43. Publication of decisions on grant off exemptions

Within seven working days as from the date of issuance of decisions on the grant of exemptions, the competition-managing agency shall have to publicize them in all the following forms:

1. Posting them up at its head office.

2. Announcing them on the mass media.

Article 44. Errors not regarded as frauds in exemption application dossiers

Errors which shall not be regarded as frauds in exemption application stated at Point a, Clause 2, article 37 of the Competition Law shall include spelling mistakes, typing mistakes and printing mistakes which are not related to financial statement figures and do not alter the principal contents of the explanatory reports in the exemption application dossiers.

Chapter III

COMPETITION PROCEEDINGS

Section 1. ACCEPTANCE OF DOSSIERS OF COMPLAINT ABOUT COMPETITION CASES

Article 45. Contents of written complaints in dossiers of complaint about competition cases

1. A written complaint in a dossier of complaint about a competition case stated in Article 58 of the competition Law must contain the following principal details:

a. Date of making of the written complaint;

b. Date of making of the written complainant;

c. Name and address of the complained party;

d. Names and addresses of persons with related interests or obligations (if any);

e. Specific matters proposed to the competition-managing agency for handling;

f. Full names and addresses of witnesses (if any);

g. Grounds to prove that the complaint is grounded and lawful;

h. Other information which the complainant deems necessary for the settlement of the competition case;

i. Signature or fingerprint of the complainant, for complainants being individual; signature and seal of the lawful representative of the complainant, for complainants being organizations.

2. Documents stated at Points g and h, Clause 1 of this Article may be established as annexes to the written complaint included in the dossier of complaint about a competition case.

Article 46. Requests for supplementation of dossiers of complaint about competition cases, return of such dossiers; complaints about return of such dossiers and settlement thereof

1. Within seven working days from the date of receipt of a dossier of complaint about a competition case, the competition-managing agency shall check the completeness and legal validity of the dossier. Where a dossier lacks documents stated in Clause 3, Article 58 of the competition Law, the competition-managing agency shall notify such to the complainant for supplementation within 30 days; in special cases, the competition-managing agency may, at the request of the complainant, give one extension of no more than 15 days.

2. The competition-managing agency shall return a dossier of complaint about a competition case in the following cases:

a. The statute of limitations for lodging complaints specified in Clause 2, article 58 of the Competition Law has expired;

b. The case does not fall within the scope of its investigating competence;

c. The complainant fails to modify or supplement the dossier at the request of the competition-managing agency within the time limit specified in Clause 1 of this Article.

3. The complainant may lodge a complaint with the Trade Minister within five working days as from the date of receipt of the dossier of complaint returned by the competition-managing agency.

Within seven working days as from the date of receipt of such a complaint, the Trade Minister must issue either of the following decisions:

a. Upholding the return of the dossier;

b. Requesting the competition-managing agency to accept the dossier.

Article 47. Acceptance of dossiers of complaint about competition cases

1. Upon receiving a complete and valid dossier of complaint about a competition case, the competition-managing agency must immediately notify the complainant of the payment of an advance on expenses for the handling of the case, except for cases of exemption there from as provided for in Article 56 of this Decree.

2. Within 15 days as from the date of receipt of the notification of the competition-managing agency as stated Clause 1 of this Article, the complainant must pay an advance on expenses for the handling of the competition case.

3. The competition-managing agency shall accept a dossier of complaint about a competition case only after it receives a receipt of an advance on expenses for the handling of the competition case, except for cases where the complainant is exempt from such payment as provided for in Article 56 of this Decree.

Section 2. PERSONS WITH RELATED INTERESTS OR OBLIGATIONS, THEIR LAWYERS

Article 48. Person with interests or obligations related to competition cases

1. A person with interests or obligations related to a competition case is a person whose interests or obligations are related to the settlement of a competition case and who does not complain about the case or who is other than the investigated party but who makes a request on his/her own or at the request of the complainant or the investigated party to participate in proceedings in the capacity as a person with related interests or obligations and such request is accepted by the competition-managing agency or the competition case-handling panel.

2. Where a person has his/her interests or obligations related to the settlement of a competition case but nobody requests him/her to participate in proceedings in the capacity as a person with related interests or obligations, the competition-managing agency or the competition case-handling panel must ask such person to participate in proceedings in the capacity as a person with related interests or obligations.

Article 49. The right of persons with related interests or obligations to make independent requests, procedures for making such independent requests

1. Where a person with related interests or obligations does not participate in proceedings together with the complainant or investigated party according to the provisions of Article 71 of the competition Law, he/she shall have the right to make an independent request if meeting the following conditions:

a. The settlement of the competition case is related to his/her interests or obligations;

b. His/her independent request is related to the competition case being settled;

c. The settlement of his/her independent request in the same competition case in a more accurate and rapid manner.

2. Independent request shall be made according to procedures for lodging complaints about competition cases as provided for in Section 1 of this Chapter.

Article 50. Lawyers of persons with related interests or obligations

1. Lawyers who are qualified for participating in legal proceedings according to the provisions of law and authorized by persons with related interests or obligations shall have the right to participate in competition proceedings to protect legitimate rights and interests of such persons.

2. When participating in competition proceedings, lawyers of persons with related interests or obligations shall have rights and obligations specified in Article 67 of the competition Law.

Section 3. CHARGES FOR HANDLING OF COMPETITION CASES, FEES FOR EVALUATION OF EXEMPTION APPLICATION DOSSIERS AND OTHER PROCEEDING EXPENSES

Article 51. Charges for handling of competition cases

Charges for handling of a competition case as provided for in Article 62 of the Competition Law shall include the following:

1. Charges for settlement of a complaint about a competition case according to the complaint dossier provided for in Article 58 of the Competition Law or charges for settlement of a competition case where indication of violation of the Competition Law have been detected by the competition-managing agency.

2. Charges for settlement of an independent request filed by a person with related interests or obligations.

Article 52. Principles for collection, remittance and management of charges for handling of competition cases, fees for evaluation of exemption application dossiers

1. Charges for handling off competition cases and fees for evaluation of exemption application dossiers must be fully and promptly remitted into the state budget.

2. Advances on expenses for handling of competition cases shall be paid to the competition-managing agency for depositing in temporary custody accounts opened at the State Treasury and be withdrawn for the execution of competition-managing agency or competition case-handling panel.

3. Where a payer of an advance on expenses for handling of a competition case stated in Clause 2 of this Article is entitled to reimbursement of part or whole of the paid amount, the competition-managing agency must carry out procedures for reimbursing this amount to the payer.

4. Where a payer of an advance on expenses for handling of a competition case is liable to pay the charge for handling of the case, the collected advance amount must be remitted into the state budget immediately after the decision of the competition-managing agency or competition case-handling panel takes effect.

5. Upon collecting advance amounts for expenses for handling of competition cases and fees for evaluation of exemption application dossiers, the competition-managing agency must give receipts thereof, which are issued by the Finance Ministry.

6. When the market prices of products or services see a fluctuation of 20% or more, the Trade Ministry shall coordinate with the Finance Ministry in adjusting the rates of changes for handling of competition cases and fees for evaluation of exemption application dossiers, which are specifically determined in cash in this Decree, to suit the actual price levels.

Article 53. Rates of charges for handling of competition cases and the obligation to pay advances on expenses for the handling of competition cases

1. The rates of charge for settlement of competition cases are specified as follows:

a. The charge for settlement of a competition case involving an unfair competition case involving an unfair competition act is VND 10,000,000;

b. The charge for settlement of a competition case involving a competition-restricting act is VND 100,000,000;

c. The charge for settlement of an independent request filed by a person with related interests or obligations is VND 10,000,000.

2. Except for the cases of exemption from payment of advances on expenses for handling of competition cases specified in Article 56 of this Decree, the complainants stated in Article 58 of the Competition Law and persons with related interests or obligation who have filed independent requests in competition cases must pay an advance on expenses for settlement of competition cases, which is equal to 30% of the charge specified in Clause 1 of this Article.

Article 54. Disposal of advances paid on expenses for handling of competition cases

1. Those who have paid an advance on expenses for handling of competition cases shall be reimbursed the whole of the paid amount or the balance thereof if they are not liable to pay the charge which, however, is less than the paid advance under a legally effective decision of the competition-managing agency or competition case-handling panel.

2. The time limit for reimbursement of the whole of the paid amount or the balance thereof stated in Clause 1 of this Article shall be 30 days as from the date the competition case-handling decision takes legal effect.

3. Where the investigation of a competition case is stopped under the provisions of Clause 1, Article 88 of the Competition Law, the advance paid on expenses for handling of the case shall be remitted into the state budget.

Article 55. Liability to pay charges for handling of competition cases

1. The liability of the complainant, the investigated party or the competition-managing agency to pay charges for handling of competition cases shall be determined under the provisions of Article 63 of the Competition Law, except for cases of exemption from payment thereof stated in Article 56 of this Decree.

2. Persons with related interests or obligations shall be liable to pay charges for handling of competition cases with regard to their independent requests if their requests were rejected by the competition managing agency or competition case-handling panel, except for cases of exemption from payment thereof stated in Article 56 of this Decree.

3. Where the settlement of a competition case is stopped under the provisions of Point b, Clause 1, Article 101 of the Competition Law, the complainant, the investigated party and persons with related interests or obligations shall be liable to pay 50% of the charge for handling of the competition case as provided for in Article 53 of this Decree.

The complainant, the investigated party and persons with related interests or obligations may reach an agreement among themselves on the portions of the charge for handling of the competition case which each of them shall be liable to pay; if they can not reach such an agreement, the competition case-handling panel shall make decision.

4. Where a party is exempt from payment of the charge for handling of a competition case, the other party(ies) must still be liable to pay his/her portion of the charge according to the provisions of Clauses 1 and 2 of this Article.

Article 56. Cases of exemption from payment of advances on expenses for handling of competition cases, exemption from payment of charges for handling of competition cases

Low-income consumers as certified by commune, ward or township Peoples Committees (hereinafter referred to as commune-level Peoples Committees), agencies when they work or social organizations of the localities where they reside may be exempted by the competition-managing agency from paying part or the whole of the advance on expenses for handling of competition cases or from paying the charges for handling of competition cases.

Article 57. Rate of fee for evaluation of exemption application dossiers

The fee for evaluation of an exemption application dossier is VND 50,000,000.

Article 58. Other proceeding expenses

Other proceeding expenses shall include expertise expense, expense for witnesses, expense for interpreters and expense for lawyers.

Article 59. Advances on expertise expense, expertise expense

1. An advance on expertise expense is an amount temporarily calculated by the competition-managing agency or competition case-handling panel for conducting an expertise.

2. Expertise expense is a necessary and reasonable amount payable for an expertise and calculated by the expertise-conducting organization or individual in accordance with the provisions of law.

Article 60. The obligation to pay an advance on expertise expense

1. The requester for an expertise must pay an advance on expertise expense unless otherwise provided for by law.

2. Where the involved parties request an expertise of the same object, each party shall be liable to pay half of the advance on expertise expense, unless otherwise provided for by law.

Article 61. Disposal of advances paid on expertise expenses

1. Where a person who has paid an advance on expertise expense is not liable to pay expertise expense, the person liable to pay expertise expense under a decision of the competition-managing agency or competition case-handling panel must refund the paid advance to the person who has paid it.

2. Where a person who has paid an advance on expertise expense is liable to pay expertise expense, if the paid advance is lower than the actually incurred expertise expense, he/she must pay an additional amount to cover the deficit; if the paid advance is higher than the actually incurred expertise expense, he/she shall be refunded the superfluous amount.

Article 62. The obligation to pay expertise expense

The obligation to pay expertise expense shall be determined as follows:

1. A person who has requested an expertise shall be liable to pay expertise expense if the expertise result proves that his/her request is groundless.

2. A person who refuses to accept a request for an expertise shall be liable to pay expertise expense if the expertise result proves that the request of the expertise requestor is grounded

Article 63. Expenses for witness

1. Reasonable and actual expenses for witnesses shall be paid by the witness-inviting party.

2. The person who has requested the competition-managing agency or competition case-handling panel to summon a witness shall be liable to pay expenses for such witness if the witnesss statements conform to the facts but do not support his/her request.

Where the statements of a witness conform to the facts and support the request of the person who has requested the summon of such witness, expense for such witness shall be paid by the party that has made a request independent from the request of the person who has requested for the summon of the witness.

Article 64. Expenses for interpreters, lawyers

1. Expense for an interpreter is a sum of money payable to an interpreter is a sum of money payable to an interpreter in the course of settlement of a competition case as agreed upon between the interpreter-inviting person and the interpreter or as provided for by law.

2. Expense for a lawyer is a sum of money payable to a lawyer as agreed upon between the lawyer-inviting person and the lawyer within the limit set by the lawyers office and in accordance with the provisions of law.

3. Expenses for interpreters or lawyers shall be paid by the interpreter-or lawyer-inviting persons, unless otherwise agreed upon by the involved parties.

4. Where the competition-managing agency or competition, case-handling panel has requested an interpreter, it shall pay expenses for such interpreter.

Section 4. GRANT, SERVING, NOTIFICATION OF COMPETITION-PROCEEDING DOCUMENTS

Article 65. The obligation to grant competition-proceeding documents, the obligation to serve or notify competition-proceeding documents

The competition-managing agency or competition case-handling panel shall be obligated to grant, serve or notify competition-proceeding documents specified in article 66 of this 66 of this Decree to the complainant, the investigated party, other proceeding participants and concerned organizations and individuals in accordance with the provisions of the Competition Law and this Chapter.

Article 66. Competition-proceeding documents which must be granted, served or notified

Competition-proceeding documents which must be granted, served or notified include:

1. Decision on the investigation of a competition case, made by the head of the competition-managing agency.

2. Competition case-handling decision, made by the competition-managing agency or competition case-handling panel.

3. Written complaint about a competition case, written complaint about a competition case-handling decision.

4. Notices, summonses and invitations in competition proceedings.

5. Receipts of advance on expenses for handling of a competition case, the charge for handling of a competition case and other expenses.

6. Other documents in competition proceedings as provided for by law.

Article 67. Persons responsible for granting, serving or notifying competition-proceedings documents

1. Persons responsible for issuing, serving or notifying competition-proceeding documents shall include:

a. Persons conducting competition proceedings and other persons of the competition-proceeding document-issuing agency who are assigned to grant, serve or notify competition procedures;

b. Commune-level Peoples Committees of the places where competition proceeding participants reside or agencies or organizations where they work, as requested by the competition-managing agency or Competition council;

c. Other persons as provided for by law.

2. Persons who are responsible for granting, serving or notifying competition-proceeding documents but fail to properly perform their duty shall, depending on the nature and seriousness of their violations, be disciplined, administratively sanctioned or examined for penal liability; if causing damage, they must pay compensation therefore according to the provisions of law.

Article 68. Methods of grant, serving or notification of competition-proceeding documents
The grant, serving or notification of competition-proceeding documents shall be affected with one of some of the following methods:

1. Grant, serving or notification of competition-proceeding documents directly to the addressees, by post or through an authorized third party.

2. Public posting.

3. Announcement on the mass media.

Article 69. Procedures for grant, serving or notification of competition-proceeding documents directly to individuals

1. Persons responsible for granting, serving or notifying competition-proceeding documents must personally grant, serve or notify competition-proceeding documents to the addresses. The persons who are granted, served with or notified of competition-proceeding documents must sign on the records or in the books of hand-over and receipt of competition-proceeding documents.

2. Where a person who is granted, served with or notified of a competition-proceeding document is absent, such competition-proceeding document may be handed over to his/her co-residing relative who has full capacity for civil acts. This relative must sign for the receipt of the document and shall be asked to pledge to hand over the competition-proceeding document to its addresses in person. The date of signing by the co-residing relative shall be regarded as the date of being granted, served with or notified of the competition-proceeding document.

Where there is no co-residing relative who has full capacity for civil acts or there is such person but he/she refuses to receive a competition-proceeding document for handling it over to the addressee, such document may be handed over to the head of the street population group, the chief of the village or hamlet (hereinafter referred to as head of the street population group), the commune-level Peoples Committee or police of the place where the recipient resides, who shall be asked to pledge to hand over the document to its addressee in person.

3. Where a competition-proceeding document is granted, served or notified by an authorized third person, such person must make a record clearly stating the absence of the recipient and the person who has been handed over the competition-proceeding document; the reason; the hour and date of hand-over, the relationship between such person and the addressee; the pledge to hand the competition-proceeding document to its addressee in person. Such record must be signed by the person who has agreed to hand over the competition-proceeding document to its addressee, the person in charge of granting, serving or notifying the document, and a witness.

4. Where the person who is granted, served with or notified of a competition-proceeding document has moved to a new address, such document must be granted, served or notified according to his/her new address.

5. Where the person who is granted, served with or notified of a competition-proceeding document is absent and the time of his/her return or his/her whereabouts is unknown, the person in charge of granting, serving or notifying the document must make a record on the impossibility to grant, serve or notify the document, which must be signed by the information supplier.

6. Where the person who is granted, served with or notified of a competition-proceeding document refuses to receive such document, the person in charge of granting, serving or notifying the document must make a record, clearly stating the reason for such refusal and containing the certification by the head of the street population group, the commune Peoples Committee or police that the addressee has refused to receive the competition-proceeding document.

Article 70. Procedures to grant, serving or notification of competition of competition-proceeding documents directly to agencies or organizations

1. Where the person who is granted, served with or notified of a competition-proceeding document is an agency or organization, such document must be directly handed over to its representative at law or person responsible for receiving documents, who must sign for receipt of such document.

2. Where the agency or organization which is granted, served with or notified of a competition-proceeding document has its representative participating in the proceedings or appoints a representative to receive such document, such persons shall sign for receipt of such document.

Article 71. Procedures for public posting

1. The public posting of a competition-proceeding document shall be effected only when the whereabouts of the person who is granted, served with or notified of such document is unknown or when it is impossible to arrange the direct grant, serving or notification thereof.

2. The public posting of a competition-proceeding document shall be effected directly by the competition-managing agency or Competition council or authorized to the commune-level Peoples Committee of the place where the person who is granted, served with or notified of such document resides or last resided according to the following procedures:

a. The original document shall be posted up at the head office of the competition-managing agency, the Competition council or the commune-level Peoples Committee of the place where the person who is granted, served with notified of such document resides or last resided;

b. Its copy shall posted up at the place where the person who is granted, served with or notified of such document resides or last resided;

c. A record shall be made on the completion of public positing procedures, clearly stating the date of posting.

3. The public posting of a competition-proceeding document shall last for 15 days, as form the date of posting.

Article 72. Procedures for mass media announcement

1. The mass media announcement shall be made only when it is so requires by law or there are grounds that public posting shall not secure that the person to be granted, served or notified of a competition-proceeding document shall receive information on such document.

2. The mass media announcement may be made at the request of the complainant, the investigated party or persons with related interests or obligations. The fee for such announcement shall be paid by the requester for such announcement.

3. The mass media announcement must be carried on a central daily for three consecutive issues or broadcast by a central television or radio station three times on three consecutive days.

Article 73. Notification of the result of grant, serving or notification of competition-proceeding documents

Where a person in charge of grant, serving or notification of a competition-proceeding document is other than the competition-managing agency or Competition council, he/she must immediately notify the result of the grant, serving or notification to the competition-managing agency or competition council.

Section 5. PROVING AND EVIDENCE

Article 74. The right and obligation to prove

1. The complainant or a person with related interests or obligations that has made an independent request must produce evidence to prove that his/her complaint or request is grounded and lawful.

2. The party opposing another persons complaint or request with respect to itself shall have the right to prove that its opposition is grounded and must produce evidence to prove such.

3. The competition-managing agency shall have the obligation to prove acts of violation of the law on competition in the case specified in clause 2, Article 65 of the Competition Law.

Article 75. Circumstances, events which are not required to prove

The following circumstance and events shall not be required to prove:

1. Apparent circumstances or events know to everyone and accepted by the competition-managing agency or competition-managing agency or competition case-handling panel

2. Appropriate circumstances or events already ascertained in legally effective competition case-handling decisions of the competition-managing agency or competition case-handling panel or legally effective decisions of competent state agencies.

3. Circumstances or events already recorded and lawfully notarized or authenticated.

Article 76. Identification of evidence

1. Exhibits must be original objects related to a case.

2. Witnesss statements and explanations of related organizations or individuals shall be regarded as evidence if they are recorded in writing, recording tapes, recording discs, video tapes, video discs or other audio or video recording equipment, enclosed with documents certifying the recorded events, or oral statements at hearings.

3. Original documents, lawfully notarized or authenticated copies or translations of original documents or copies supplied and certified by competent agencies or organizations shall be regarded as evidence if the contents of such documents are readable.

4. Expertise conclusions shall be regarded as evidence if such expertise has been conducted according to law-established procedures.

Article 77. Submission of evidence

1. The involved parties shall have to submit evidence to the competition-managing agency or competition case-handling panel in the process of investigation and settlement of a competition case.

2. The submission of evidence stated in Clause 1 of this Article must be recorded in writing. Such a record must contain the name, form, content and characteristics of evidence; number of copies and number pages of evidence and the time of receipt thereof; the signature of the recipient and the seal of the competition-managing agency or competition council. It must be made in two copies, one to be filed in the competition case dossier and the other to be given to the evidence submitter.

Article 78. Taking of statements of complainants, persons with related interests or obligations, witnesses

1. Investigators, members of a competition case-handling panel shall take statements of the complainant or a person with related interests or obligations only when person has not yet made a written explanation or his/her explanation is incomplete or unclear.

The complainant, a person with related interests or obligations or a witness must write a statement by himself/herself and sign it. Where the complainant, a person with related interests or obligations or a witness cannot write a statement by himself/herself, an investigator or a member of the competition case-handling panel shall take his/her statement. The person who takes a statement shall record by himself/herself or a hearing clerk shall record in a minutes the statements of the complainant, persons with related interests or obligations and/or witnesses.

2. The taking of statements provided for in Clause 1 of this Article shall be conducted at the office of the competition-managing agency or Competition Council; in case of necessity, the taking of statements may be conducted outside the office of the competition-managing agency or Competition Council.

3. A statement minutes must be read by or to the statement giver, who shall affix his/her signature or fingerprint on it. The statement giver may request to have alterations and/or additions recorded in the minutes and affix his/her signature or fingerprint for certification thereof. A minutes must be signed by the statement taker and the minutes recorder and affixed with the stamp of the competition-managing agency or Competition Council; if a minutes has loose pages, each page must be signed and affixed with an overlapping stamp.

Where a statement minutes is made outside the head office of the competition-managing agency or Competition council, a witness or certification of the commune-level Peoples Committee or police of the place or the agency or organization where the minutes is made shall be required.

4. The taking of statements of the complainant, a person with related interests or obligations or witness who is a minor or has his/her civil act capacity restricted must be conducted in the presence of a lawful representative of such person.

5. Minutes of statements of the complainant, the investigated party and persons with related interests or obligations shall be regarded an integral part of the written explanations of these persons.

Article 79. Taking of statements of the investigated parties

1. In case of necessity, investigators or members of the competition case-handling panel may take statements of the investigated parties.

2. The procedures for taking statement of the investigated parties shall be similar to the procedures for taking statements as provided for in Article 78 of this Decree.

Article 80. Circumstances, events which are not required to prove

1. The head of the competition-managing agency or competition case-handling panel may take decision by himself/herself or at the proposal of an investigator or of the involved parties to solicit an expertise. Such a decision must contain the name and address of the expert, the object to be expertised, matters to be expertised and specific questions which need the conclusion of the expert.

2. The expert specified in an expertise-soliciting decision must conduct an expertise according to the provisions of law.

3. Where it is deemed that the expertise conclusion is incomplete, unclear or in violation of law, the head of the competition-managing agency or competition case-handling panel shall make decision on an additional expertise or a re-expertise. A re-expertise may be conducted by the previous expert or another professional organization according to the provisions of law.

Article 81. Solicitation of evidence denounced to be forged

1. Where evidence is denounced to be forged, the producer of such evidence may withdraw it; if he/she does not withdraw such evidence, the denouncer may request the competition-managing agency or competition case handling-panel to solicit an expertise as provided for in Article 80 of this Decree.

2. Where the forging of evidence shows criminal indications, the competition-managing agency or competition case-handling panel shall refer the case to a competent criminal investigation agency.

3. Those who produce forged evidence shall have to pay compensation for damage caused by such evidence to other persons.

Article 82. Preservation of evidence

1. Where an evidence has been submitted to the competition-managing agency or competition case-handling panel, the competition-managing agency or competition case-handling panel shall be responsible for preserving it.

2. Where an evidence cannot be submitted to the competition-managing agency or competition case-handling panel, the person who is keeping it shall have to preserve it.

3. In case of necessity to hand over evidence to a third person for preservation, the head of the competition-managing agency or competition case-handling panel shall make a decision to this effect and a record on the hand-over of such evidence to the third person for preservation, who shall have to sign on the record, enjoy a remuneration and take responsibility for the preservation.

Article 83. Assessment of evidence

1. The assessment of evidence must be objective, comprehensive, complete and accurate.

2. The competition-managing agency or competition case-handling panel must assess each and every evidence, the relationship between pieces of evidence and assert the legal validity of each evidence.

Article 84. Publiciszation and use of evidence

1. All evidence must be publicized and used in an equally public manner, except for the cases specified in Clauses 2 and 3 of this Article.

2. The competition-managing agency or competition case-handling panel must not publicize and use in a public manner the following evidence:

a. Evidence classified by law as state secret;

b. Evidence relating to fine customs, professional secrets, business secrets or personal privacy at the legitimate request of the concerned party.

3. When deeming it necessary, the competition-managing agency or competition case-handling panel may publicize and use in a public manner only some pieces of evidence at appropriate time in order to ensure proper investigation and handling of competition cases.

4. Proceeding-conducting persons and proceeding participants must keep secret according to the provisions of law pieces of evidence which must not be publicized and used in a public manner according to the provisions of Clause 2 of this Article.

Section 6. EXTENUATING CIRCUMSTANCES, AGGRAVATING CIRCUMSTANCES

Article 85. Extenuating circumstances, aggravating circumstances

1. Extenuating circumstances in the handling of violations of provisions on control of competition-restricting acts shall include:

a. Voluntary declaration of acts of violation before they are detected by competence agencies;
b. Violators have averted or reduced the adverse impacts of their acts of violation, have voluntarily remedied consequences or compensated for damage;

c. Violators have voluntarily supplied evidence and/or information relating to acts of violations which was previously unknown to competent agencies;

d. Positive impacts of acts of violation on economic development.

2. Aggravating circumstances in the handling of violations of provisions on competition-restricting acts shall include:

a. Having committed a violation many times or committing recidivism in the same domain;

b. Committing a violation after receiving a competent agencys decision on rejecting enjoyment of exemptions or decision on annulling the decision on granting exemptions;

c. Continuing to commit an act of violation through a competent person has requested to terminate such act;

d. Evading or concealing a committed violation.

3. For acts of violations of provisions on competition-restricting acts, besides extenuating circumstances and aggravating circumstances specified in Clauses 1 and 2 of this Article, the competition-managing agency may consider and apply extenuating circumstances and aggravating circumstances specified in Article 8 and 9 of the Ordinance on Handling of Administrative Violations.

Article 86. Commission of a violation many times in the same domain

Commission of a violation many times in the same domain means the case where a person commits a violation of competition law in the domain where he/she previously committed a violation but has not yet been handled for such violation while the statue of limitations for such handling ha snot yet expired.

Article 87. Recidivism in the same domain

Recidivism in the same domain means the case where a person commits a violation of competition law in the domain where he/she has been handled for a previously committed violation while the two-year time limit counting from the time he/she has completely served the handling decision or from the date of expiration of the statute of limitations for execution of the handling decision has not yet expired.

Section 7. ADMINISTRATIVE PREVENTIVE MEASURES IN THE COURSE OF INVESTIGATION, HANDLING OF COMPETITION CASES

Article 88. Administrative preventive measures in the course of investigation and handling of competition cases

In order to prevent in time violations of competition law or to guarantee the handling of a competition law or to guarantee the handling of a competition case, a competent person may apply one of the following administrative measures in the course of investigation or handling of a competition case:

1. Detention of persons according to administrative procedures.

2. Detention of exhibits and means employed in the commission of a violation law.

3. Body search.

4. Search of means or objects.

5. Search of places where exhibits or means employed in the commission of a violation of competition law are hidden.

Article 89. Principles for application, change or cancellation of administrative preventive measures in the course of investigation or handling of competition cases

The application, change or cancellation of administrative preventive measures in the course of investigation or handling of competition cases must comply with the provisions of Clause 2,3, and 4, Article 61; Clause 6, Article 76; Clause 4, Article 479; Clause 2, Article 81 of the Competition Law, the provisions of this Section and the provisions of the Ordinance on Handling of Administrative Violations.

Article 90. Detention of persons according to administrative procedures

1. The detention of persons according to administrative procedures shall be applied in cases where it is necessary to gather and verify important circumstances used as a basis for making decision on handling a competition case.

2. The detention of persons stated in Clause 1 of this Article must comply with current provisions of law on detention of persons.

Article 91. Competence to detain persons in the course of investigation or handling of competition case according to administrative procedures

1. The following persons shall have the power to make decision to detain persons in the course of investigation or handling of competition cases according to administrative procedures:

a. The head of the competition-managing agency;

b. The chairman of the competition council.

c. Persons defined in Article 45 of the Ordinance on Handling of administrative Violations.

2. Where persons defined in clause 1 of this Article are absent, their authorized deputies may make decision to detain person persons according to administrative procedures and take responsibility for their decisions.

Article 92. Detention of exhibits and means employed in violations of competition

1. The detention of exhibits and means employed in violations of competition law may be applied in case where it is necessary to verify circumstance used as a basis for making decision on handling a competition case or to promptly stop acts of violation.

2. Competent persons specified in Article 91 of this Decree may make decision to detain exhibits and means employed in violations of competition law.

3. Where there are grounds to believe that unless exhibits and means employed in violations of competition law are promptly detained, they may be dispersed or destroyed, the direct superiors of peoples policemen, border guards, forest rangers, customs officers, market controllers or specialized inspectors may make decision to detain such exhibits and means. Within 24 hours as from the time of issuing such a decision, the decision issuer must report it to his/her superior who has the power to detain exhibits and means employed in administrative violations as specified in Clause 2 of this Article and get their written approval. In cases where the issued decision is not approved by his/her superior, the decision issuer must immediately cancel such decision and return the detained objects, money, goods and/or means.

4. The detention of exhibits and/or means employed in violations of competition law must be recorded in writing. Such a record must contain the names, quantities and types of exhibits and/or means; if such exhibits or means are lost, sold, fraudulently swapped or damaged due to their fault, such persons shall have to compensate therefore and be handled according to the provisions of law.

Where exhibits or means need to be sealed up, they must be sealed up, they must be sealed up in the presence of the violator; where the violator is absent, they must be sealed up in the presence of a representative of his/her family, a representative of an organization or local administration, and a witness.

5. For Vietnamese currency, foreign currencies, gold, silver, gems, precious metals, narcotics and other objects subject to a special management regime, the preservation thereof shall comply with the provisions of law.

For exhibits or means employed in violations which are easy-to-deteriorate goods or articles, the detention decision issuer must handle them in accordance with the provisions of Clause 3, Article 61 of the Ordinance on Handling of Administrative Violations.

6. Within 10 days as from the date of detention, the detention decision issuer must handle detained exhibits and means by applying the measures stated in the detention decision or return them to the individual or organization concerned if the sanctioning form of confiscation of such detained exhibits or means is not applied.

The time limit for detention of exhibits and means employed in violations of competition law may be extended in complicated cases where verification is required but must not exceed 60 days as from the date of detention of such exhibits and means. The extension of such time limit must be decided by one of the persons defined in Clause 2 of this Article.

7. The detention of exhibits and means employed in violations of competition law must be decided in writing, enclosed with a detention record. Their copies must be given to the violator or representative of the violating organization.

Article 93. Body search according to administrative procedures

1. Body search according to administrative procedures shall be conducted only when there are grounds to believe that a person is hiding articles, documents or means employed in a violation of competition law on his/her body.

2. Competent persons defined in Article 91 of this Decree may make decision to conduct a body search according to administrative procedures.

Where there are grounds to believe that articles, documents or means employed in a violation of competition law may be dispersed unless a body search is promptly conducted, apart from persons defined in article 91 of this Decree, peoples policemen, members of coast guard professional squads, border guards, forest rangers or market controllers who are on duty may conduct a body search according to administrative procedures, then immediately send a written report thereon to their superiors being those who are defined in Article 91 of this Decree and must take responsibility before law for such body search.

3. A body search must be decided in writing, except for prompt searches stated in Paragraph 2, Clause 2 of this Article.

4. Before conducting a body search, the searcher must notify the body search decision to the person to be searched. In a body search, the searcher and the searched person must be of the same sex and the search must be conducted to the witness of a person of the same sex.

5. Every body search must be recorded in writing. The copies of the body search decision and record must be given to the searched person.

Article 94. Search of places where exhibits and means employed in violations of competition law are concealed

There search of a place where exhibits and means employed in violations of competition law are concealed shall comply with the following provisions:

1. Competent persons defined in Article 91 of this Decree may issue decisions to search places where exhibits and means employed in violations of competition law are concealed.

2. A place where exhibits and means employed in violations of competition law are concealed is a place where articles, money, goods and/or means employed in a violation of competition law are concealed by the violator. If exhibits and means employed in a violation of competition are hidden by the violator on his/her body, a body search shall be conducted according to the provisions of Article 93 of this Decree.

3. Where a place where exhibits and means employed in violations of competition law are concealed is a residence, a competent person defined in Article 91 of this Decree may conduct a search only after having obtained written consent of the president of the district-level Peoples Committee of the place where exhibits and means are concealed.

A resident stated in this Article is a location for habitual accommodation of an individual or a family household that has been granted permanent residence there; or; if a means is used as a habitual accommodation of an individual or a family household, a place where such means has been registered.

4. All searches of places where exhibits and means are concealed must be recorded in writing according to a set form.

Article 95. Procedures for application of administrative preventive measures

1. Those who propose the head of the competition-managing agency or the chairman of the Competition Council to apply administrative preventive measures defined in Clause 2, Article 61 of the Competition Law must make and send petitions to the latter.

A petition for the application of administrative preventive measures must contain the following principal details:

a. Date of making of the petition;

b. Name and address of the petitioner;

c. Name and address of the person against whom administrative preventive measures are petitioned to be applied;

d. Brief account of the act that infringes upon the petitioners legitimate rights and interests;

e. Grounds for the application of administrative preventive measures;

f. Administrative preventive measures which need to be applied and other specific recommendations.

The petitioner must, depending on his/her petition for the application of administrative preventive measures, supply the head of the competition-managing agency or the chairman of the Competition Council evidence to prove the necessity to apply such administrative preventive measures.

2. The head of the competition-managing agency or the chairman of the Competition Council must issue a decision to apply administrative preventive measures within three days after the date of receipt of a petition, if the petitioner is not required to provide a security as provided for in Article 97 of this Decree; if refusing to accept the petition, the head of the competition-managing agency or the chairman of the Competition council must issue a written notice, clearly stating the reason therefore.

Where the competition case-handling panel receives a petition for the application of administrative preventive measures at a hearing, the president of the hearing shall propose the chairman of the Competition Council to consider and issue a decision to apply such measures immediately or after the petition provides a security as provided for in article 97 of this Decree.

Article 96. Issuance of decisions to apply administrative preventive measures by the head of the com petition-managing agency or the chairman of the Competition Council by himself/herself

The head of the competition-managing agency or the chairman of the Competition Council shall issue decisions by himself/herself to apply administrative preventive measures in the course of investigation or handling of competition cases if there is no petition on the application thereof according to the provisions of article 95 of this Decree.

Article 97. Forced implementation of security measures

The complainant in a competition case shall, when submitting a petition to the head of the competition-managing agency or the chairman of the competition council to apply one of administrative preventive measures, must deposit a sum of money, some precious metal, gem or valuable papers in a blocked State Treasury account within a time limit fixed by the head of the competition-managing agency or the chairman of the Competition Council.

Article 98. Change of administrative preventive measures, application of additional ones

When it is deemed that the applied administrative preventive measure is no longer appropriate and should be changed or an additional one should be applied, the procedures for change of administrative preventive measures or application of additional ones shall be similar to those specified in Article 95 of this Decree.

Article 99. Cancellation of the application of administrative preventive measures

1. The head of the competition-managing agency or the chairman of the Competition Council must decide to cancel the applied administrative preventive measures in one of the following cases:

a. The cancellation is proposed by the petitioner for the application of such administrative preventive measures;

b. The time limit for detention of exhibits and means employed in the violation of competition law has expired.

2. In case of cancellation of an administrative preventive measure, the person who has petitioned for the application of such administrative preventive measure shall be entitled to receive back the security which is a sum of money, some precious metal, gem or valuable papers as provided for in Article 97 of this Decree, except for the case specified in Clause 3. Article 61 of the Competition Law.

Article 100. Effect of decisions to apply, change or cancel administrative preventive measures

1. Decisions to apply, change or cancel administrative preventive measures shall take effect instantly.

2. The head of the competition-managing agency or the chairman of the Competition Council shall grant or sent the decisions to apply, change or cancel administrative preventive measures immediately after the issuance thereof to the petitioners, the persons to whom the administrative preventive measures shall be applied, and other concerned organizations and individuals.

Section 8. HEARINGS, COMPETITION CASE-HANDLING DECISIONS OF THE COMPETITION CASE-HANDLING PANEL

Article 101. General requirements for hearings

1. A hearing must be conducted on time and at the place as indicated in the decision to open the hearing or in the notice on the re-opening of the hearing in case of postponement of a hearing.

2. The competition case-handling panel must directly identify details of a competition case by raising questions and listening to statements of the complainant, the investigated party, persons with related interests or obligations, and other participants in the proceedings; consider and examine documents and evidence already collected; listen to the investigators presentation on the investigation conclusions. A competition case-handling decision shall be based only on the result of the questioning at the hearing, arguments and evidence examined and verified at the hearing.

3. The questioning and argumentation at a hearing must be uninterruptedly conducted, excluding breaks. Members of the competition case-handling panel must participate in the hearing from the beginning to the end, except for the case specified in Clause 1, Article 102 of this Decree.

In a special case specified in this Decree, a hearing may stop for no more than five working days and be resumed after this time limit.

4. Each hearing must be participated by at least one member of the Competition Council other than members of the competition case-handling panel.

Article 102. Replacement of members of the competition case-handling in special cases

1. Where a member of the competition case-handling panel is unable to continue participating in a hearing, the member of the Competition Council who participates in the hearing shall replace such person.

2. Where the president of a hearing is unable to continue participating in a hearing, the hearing shall stop for no more than one working day during which the chairman of the Competition council shall appoint another member of the competition case-handling panel to replace such person.

Article 103. The presence of the complainant, the investigated party and persons with related interests or obligations at hearings

1. The complainant, the investigated party and persons with related interests or obligations must be present at a hearing in response to the summonses of the competition case-handling panel; a hearing must be postponed if any of them is absent for the first time for a plausible reason.

2. If the complainant, the investigated party or a person with related interests or obligations is still absent though he/she has been summoned for the second time, the com petition case-handling panel shall still conduct a hearing to settle the competition case in their absentia.

3. If a person with related interests obligations who has filed an independent request is still absent though he/she has been summoned for the second time, he/she shall be deemed to have abandoned his/her independent request and the competition case-handling panel shall issue a decision to stop the settlement of his/her independent request, provided that it is agreed by both the complainant and the investigated party.

Article 104. Conduct of hearings to settle competition cases in cases where the complainant, the investigated party or a person with related interests or obligations is absent

The competition case-handling panel shall still conduct a hearing to settle a competition case in the following cases:

1. The complainant, the investigated party or a person with related interests or obligations, who is absent at the hearing, has requested in writing the competition case-handling panel to settle the competition case in his/her absentia.

2. The complainant, the investigated party or a person with related interests or obligations, who is absent at the hearing, has a lawful representative participating in the hearing.

3. The investigated party or a person with related interests or obligations falls into the case specified in Clause 2, Article 103 of this Decree.

Article 105. The presence of lawyers

1. Lawyers of the complainant, the investigated party and persons with related interests or obligations must participate in the hearings in response to the summonses of the competition case-handling panel; if any of them is absent for the first time for a plausible reason, the hearing must be postponed.

2. If the lawyer of the complainant, the investigated party or a person with related interests or obligations is absent though he/she has been properly summoned for the second time, the competition case-handling panel shall proceed with settling the competition case; in this case, the complainant, the investigated party or the person with related interests or obligations shall have to defend by himself/herself their legitimate rights and interests.

Article 106. The presence of witnesses

1. Witnesses shall be obliges to participate in the hearings in response to the summonses of the competition case-handling panel to help to help clarify details of the competition case. In the absence of a witness who has given his/her statements directly or sent his/her written statements to the competition case-handling panel, the president of the hearing shall publicize such statements.

2. In the absence of a witness, the co petition case-handling panel shall make decision to postpone the hearing or proceed with it; if a witness is absent at the hearing without a plausible reason and his/her absence causes difficulties to the settlement of the competition case, such witness may be escorted by police to the hearing if it is so requested by the com petition case-handling panel.

Article 107. The presence of experts

1. Experts must participate in the hearings in response to the summonses of the competition case-handling panel so as to help clarify matters related to the expertise and expertise conclusions.

2. In the absence of an expert, the competition case-handling panel shall make decision to postpone the hearing or proceed with it.

Article 108. the presence of interpreters

1. Interpreters must participate in the hearings in response to the summonses of the competition case-handling panel.

2. Where an interpreter is absent for him/her and there is no substitute, the competition case-handling panel shall postpone the hearing, unless it is requested by the involved parties to proceed with the hearing.

Article 109. The presence of interpreter

1. The head of the competition-managing agency shall appoint two investigators, at least one of whom has investigated the competition case, to participate in the hearings.

2. For a competition case invested by the competition-managing agency under the provisions of Clause 2, Article 65 of the Competition Law, if both appointed investigators cannot continue participating in a hearing, the competition case-handling panel shall postpone the hearing and notify the head of the competition-managing agency thereof.

Article 110. Time limit for postponement of hearings and making of decisions to postpone hearings

1. Where the competition case-handling panel decides to postpone a hearing under the provisions of Clause 2, Article 73 or Clause 2, Article 85 of the Competition Law and Article 103, 105, 106,107,108,109,117, and Clause 4, Article 123 of this Decree, the time limit for postponement shall not exceed 30 days as from the date of making of such decision.

2. A decision on postponement of a hearing must contain the following principal details:
a. Date of issuance of the decision;

b. Full names of members of the competition case-handling panel and of other proceeding-conducting persons;

c. The competition case brought up for settlement;

d. Reason for the postponement;

e. Time and place for reopening of the hearing.

3. A decision on the postponement of a hearing must be signed by the president of the hearing on behalf of the competition case-handling panel, publicized to the participants in the proceedings and sent to those who were absent at the hearing.

4. Where the co petition case-handling panel cannot re-open the postponed hearing at the time and place as indicated in the postponement decision, it must promptly notify the participants in the proceedings of the new time and place for re-opening of the hearing.

Article 111. Internal rules of hearings

The chairman of the Competition Council shall issue internal rules for hearings with the following principal rules:

1. Persons aged under sixteen years shall not be allowed to enter the hearing hall, unless they are summoned by the competition case-handling panel to participate in the hearing.

2. All persons present in the hearing hall must stand up when the competition case-handling panel enter the hall, respect the competition case-handling panel, keep order and comply with the orders of the president of the hearing.

3. Persons may raise questions, reply or express opinions only when they are permitted by the competition case-handling panel and must do so while standing. They may do so while being seated for health reasons and with the permission of the president of the hearing.

Article 112. Procedures for issuance of decisions of competition case-handling panels at hearings

1. A competition case-handling decision must be deliberated and adopted by the competition case-handling panel behind closed doors.

2. Decisions on change of proceeding-conducting persons, experts or interpreters, on stoppage of the settlement of a competition case or on postponement of a hearing must be deliberated and adopted behind closed doors and made in writing.

3. Decisions on other matters shall be deliberated and adopted in the hearing hall and recorded in the hearings minutes rather than being recorded in separate documents.

Article 113. Minutes of a hearing

1. The minutes of a hearing must fully contain the following details:

a. Major contents of the decision on the opening of the hearing as stated in Clause 2, Article 102 of the competition Law;

b. All happenings in the hearing from the beginning to the end of the hearing;

c. Questions, replies and opinions expressed in the hearing.

2. Except for the recording of the minutes of a hearing, the audio and video recording of the happenings at a hearing may be conducted only when it is so permitted by the competition case-handling panel.

3. After the end of a hearing must check the minutes and sign on it together with the hearing clerk.

4. Proceeding participants may examine the minutes of the hearing immediately after the end of the hearing, request it to be modified or added and sign on it for certification.

Article 114. Preparations for the opening of a hearing

Before opening a hearing, the hearing clerk must perform the following tasks:

1. Publicizing the internal rules of the hearing.

2. Checking and ascertaining the presence or absence of participants in the hearing in response to summonses and notices of the com petition case-handling panel; clarify reasons for any absence.

3. Keeping order in the hearing hall.

4. Requesting persons present in the hearing hall to stand up when the competition case-handling panel enter the hall.

Article 115. Opening of a hearing

1. The president of the hearing opens the hearing by reading aloud the decision on the opening of the hearing.

2. The hearing clerk reports to the competition case-handling panel on the presence and absence of those who are required to participate in the hearing in response to the summonses and notices of the hearing, and the reasons for any absence.

3. In case of necessity, the president of the hearing may ascertain the presence of those who are required to participate in the hearing in response to the summonses, including the complainant, the investigated party and persons with related interests or obligations.

4. The president of the hearing informs the complainant, the investigated party, persons with related interests or obligations and other persons participating in proceedings of their respective rights and obligations.

5. The president of the hearing introduces the full names of the proceeding-conducting persons, experts and interpreters.

6. The president of the hearing asks those who have the right to request change of proceeding-conducting persons, experts or interpreters if they have any such request.

Article 116. Dealing with of requests for change of proceeding-conducting persons, experts or interpreters

Where there is a request for change of a proceeding-conducting person, an expert or interpreter, the competition case-handling panel must consider and make decision to accept or refuse to accept such request according to the procedures specified in Chapter V of the competition Law; in case of refusal, it must give the reason therefore.

Article 117. Consideration of and decision on postponement of a hearing in case of absence of persons

When a person who is required to participate in a hearing is absent but his/her absence does not fall into the case where the competition case-handling panel must postpone the hearing, the president of the hearing shall ask if there is any request for the postponement of the hearing; if there is such a request, the competition case-handling panel shall look into it and decide to accept or refuse to accept it according to the procedures specified in Chapter V of the Competition Law and this Section; in case of refusal, it must give the reason therefor.

Article 118. Assurance of the impartiality of witnesses

1. In case of necessity, before questioning a witness, the president of the hearing may decide on the application of appropriate measures to make sure that the witness cannot hear other witnesses statements or have contacts with other related persons.

2. Where the statements of the complainant, the investigated party, persons with related interests or obligations and witnesses, decide to isolated the complainant, the investigated party, persons with related interests or obligations from witnesses.

Article 119. Hearing of explanations of the complainant, the investigated party, persons with related interests or obligations

1. To start the settlement of a competition case, the competition case-handing panel shall hear the explanations of the complainant, the investigated party, persons with related interests or obligations in the following order:

a. The lawyer of the complainant of the complainant presents the complainant of the complainant and evidence to prove that such complainant is grounded and lawful. The complainant may add his/her opinion;

b. The lawyer of the investigated party presents the opinion of the investigated party on the complaint of the complainant; the investigated partys proposal and evidence to prove that such proposal is grounded and lawful. The investigated party may add his/her opinions;

c. The lawyer of the person with related interests or obligations presents the opinion of such person on the complaint of the complainant; opinions and proposal of the investigated party; the independent request and proposal of such person and evidence to prove that such request and proposal are grounded and lawful. The person with related interests or obligations may add his/her opinions.

2. Where the complainant, the investigated party or a person with related interests or obligations has no lawyer, such complainant, investigated party or person may present by himself/herself his/her complaint,request and/or proposal and evidence to prove that such complaint, request and/or proposal are grounded and lawful.

3. at the hearing, the complainant, the investigated party and persons with related interests or obligations and their lawyers may add evidence to prove their co plaint, request or proposal.

4. For a competition case without a complainant and investigated by the competition-managing agency as provided for in clause 2, Article 65 of the Competition Law, the presentations by the persons specified at Point a, Clause 1 of this Article shall be replaced with the investigators report.

Article 120. Order of questioning at a hearing

After hearing the presentations of the complainant or the report of the investigator in case of investigation by the competition-managing agency as provided for in Clause 2, Article 65 of the Competition Law, of the investigated party and persons with related interests or obligations, questions for each person on each matter shall be raised in the following order:

1. By the president of the hearing.

2. By other members of the competition case-handling panel.

3. By lawyers of the parties: the complainant, the investigated party and persons with related and persons with related interests or obligations.

4. By other persons participating in the proceedings.

Article 121. Questioning of the complainant, the investigated party and persons with related interests or obligations

1. Where there are more than one complainant, the investigated party and person with related interests or obligations, they shall be questioned one after another.

2. The parties stated in clause 1 of this Article shall be questioned only on matters which have not yet been clearly presented by them and their lawyers, which conflict to one another, conflict to their previous statements, conflict to the presentations of the other parties and their lawyers.

3. The complainant, the investigated party and persons with related interests or obligations may give their replies or their lawyers may give replies and they add their opinions.

Article 122. Questioning of witnesses

1. Where there are more than one witness, they shall be questioned one after another.

2. Before questioning a witness, the president of the hearing must ask questions, clarifying their relationship with the complainant, the investigated party and persons with related interests or obligations in the competition case.

3. Where a witness is a minor, the president of the hearing may ask for the assistance of his/her parent, guardian or teacher in questioning such minor.

4. The president of the hearing shall ask witness to clearly state details of the competition case which they know. After they finish their statements, they shall be questioned only on matters which have not yet been clearly presented by them, which are incomplete or conflict to one another, conflict to their previous statements, conflict to the explanations of other persons participating in the proceedings and their lawyers.

5. After giving their statements, witnesses shall stay in the hearing hall and be possibly further questioned.

6. In case of necessity to protect the safety of witnesses and their relatives, the competition case-handling panel shall decide not to disclose information on their relatives and prevent persons present in the hearing from seeing such witnesses.

Article 123. Questioning of experts

1. The president of the hearing shall request the expert to present his/her conclusions on the expertised matter. When presenting, the expert may give additional explanations on the expertise conclusions and grounds for reaching such expertise conclusions.

2. Proceeding-participating persons who are present at the hearing may give comments on the expertise conclusions, raise questions concerning unclear or contradictory matters in the expertise conclusions or matters contradictory to other details of the competition case.

3. Where an expert is not present at the hearing, the president of the hearing shall publicize the expertise conclusions.

4. When a proceeding-participating person disagrees with the expertise conclusions publicized at a hearing and request additional expertise or re-expertise, the competition case-handling panel shall consider and make decision to accept or refuse to accept such request; in case of acceptance, the panel shall make decision to postpone the hearing.

Article 124. Termination of the questioning at a hearing

1. Before terminating the questioning at a hearing, the president of the hearing shall ask the complainant, the investigated party, persons with related interests or obligations, their lawyers and other proceeding-participating persons if they have any more questions; if there are any questions, the president of the hearing shall consider and make decision to continue the questioning.

2. If there is no more question, the president of the hearing shall make decision to move on to the argument session provided for in Article 125 of this Decree.

Article 125. Order of presentation of arguments

1. The order of presentation of arguments is as follow:

a. The lawyer of the complainant makes a presentation. The complainant may add his/her opinion;

b. The lawyers of the investigated party makes a presentation. The investigated party may add his/her opinions;

c. The lawyer of the person with related interests or obligations makes a presentation. The person with related interests or obligations may add his/her opinions.

2. Where the complainant, the investigated party or a person with related interests or obligations has no lawyer, he/she may make a presentation.

3. For a competition case involving no complainant and investigated by the competition-managing agency as provided for in Clause 2, article 65 of the Competition Law, the presentation by the complainants lawyer stated at Point a, Clause 1 of this article shall be replaced by the presentation by an investigator.

Article 126. Presentation of arguments

1. When giving their assessment of evidence and expressing their views on the settlement of the com petition case, the arguers shall base themselves on the following grounds:

a. documents and evidence already considered and examined at the hearing;

b. The results of the questioning at the hearing;

c. The president of the hearing must not limit the time for argument.

2. The president of the hearing must not limit the time for argument.

Article 127. Return to questioning

Through argument, if deeming that a detail of the co petition case has not been examined yet or thoroughly examined or additional evidence shall be examined, the competition case-handling panel shall decide to return to the questioning; after finishing the questioning, it shall resume the argument.

Article 128. The investigated partys final words

When the arguers have finished their presentations, the president of the hearing shall declare to terminate the argument.

The investigated party shall be allowed to give his/her final words. No question shall be raised when the investigated party gives his/her final words. The com petition case-handling panel may request the investigated party not to speak about matters irrelevant to the competition case but must not limit the speaking time of the investigated party.

If, in his/her final words, the investigated party discloses new circumstances of importance to the competition case, the competition case-handling panel shall make decision to return to the questioning.

Article 129. Deliberation before issuing decisions on handling competition cases

1. After terminating the argument, the competition case handling panel shall meet behind closed doors to deliberate and issue decisions on handling the competition case.

2. During deliberation, members of the competition case-handling panel shall resolve all matters related to the competition case by majority vote. Holders of minority opinions may make written opinions to be filed into the competition case dossiers.

3. The deliberation provided for in Clause 2 of this Article shall be based only on documents and evidence already considered and examined at the hearing, the results of the questioning at the hearing and comprehensive consideration of the opinions of the proceeding-participating persons.

4. Opinions given during the deliberation and decisions of the competition case-handling panel on handling the competition case must be recorded I writing, such a record must be signed by all members of the competition case-handling panel before the decision on handling the competition case is publicized.

5. For a competition case involving complicated circumstances, which requires a long deliberation before issuing s decision on handling the competition case, the competition case-handling panel may make decision on the deliberation time, which, however, must not exceed five working days as from the termination of arguments at the hearing.

The competition-case-handling panel must inform those who are present at the hearing and proceeding-participating persons who are not present at the hearing of the date and hour and place for publicizing the decision on handling the competition case; if the informed proceeding-participating persons are absent, the competition case-handling panel shall still declare the decision according to the provisions of Article 132 of this Decree.

Article 130. Return to questioning and argument

If deeming that,through deliberation, a detail of the competition case has not been considered yet, the questioning was inadequate or more evidence should be examined, the competition case-handling panel shall make decision to return to the questioning and argument.

Article 131. Contents of competition case-handling decisions of competition case-handling panels

1. A competition case0handling decision shall comprise an introduction, a summary of the case and judgments of the competition case-handling panel, and the conclusion.

2. The part of introduction of a competition case-handling decision shall contain the following details:

a. Serial number and date of acceptance of the competition case dossier;

b. Serial number and date of declaration of the competition case-handling decision;

c. Names of members of the competition case-handling panel, the clerk of the hearing;

d. Names of the expert and interpreter (if any);

e. Names and addresses of the complainant (if any), the investigated party, persons with related interests or obligations (if any); lawful representatives, lawyers of the complainant, the investigated party and persons with related interests or obligations (if any);

f. Violated articles and clauses of the Competition Law (if any);

g. Serial number and date of the decision to open the hearing;

h. Time, place and form of organization of the hearing.

3. The part of summary of the case and judgments of the competition case-handling decision must contain the following contents:

a. The complaint of the complainant or the competition-managing agency in cases where the competition case is detected and investigated by the com petition-managing agency itself;

b. The proposal of the investigated party (if any);

c. The proposal, independent request of the person with related interests or obligations (if any);

d. Analysis of evidence and judgments of the competition case-handling panel regarding the acts of violation;

e. Analysis of grounds for acceptance or rejection of the complaint and proposals of the parties and their lawyers;

f. The violated clauses and articles of the Competition Law (if any);

g. Extenuating circumstance, aggravating circumstances (if any)

If the investigated party does not violate the competition Law, the competition case-handling decision must state the grounds used for ascertaining that the investigated party did not violate the Competition Law and the honor, legitimate rights and interests must be restored.

4. The part on conclusion of a competition case-handling decision must contain the following details:

a. Decision on each matter in the com petition case;

b. Decision on the charge for handling the competition case;

c. The right to lodge a complaint about the competition case-handling decision.

5. The Trade Ministry shall be responsible for issuing the form of competition case-handling decision of the competition case-handling panel.

Article 132. Declaration of competition case-handling decisions

1. While a competition case-handling decision is declared, all persons present in the hearing hall must stand, except for special cases as permitted by the president of the hearing. The president of the hearing or another member of the competition case-handling panel shall read aloud the competition case-handling decision and explain the execution of the decision and the right to complaint about such decision.

2. Where an involved party does not know Vietnamese, the interpreter may translate the entire competition case-handling decision into a language which such party knows after such decision is declared.

Article 133. Amendment and supplementation of competition case-handling decisions

1. Once a competition case-handling decision has been declared, it cannot be amended and/or supplemented, except for cases where apparent spelling mistakes or computing errors are detected. The amendment and/or supplementation must be immediately notified to persons with interests or obligations related thereto and to the complainants.

2. The amendment and supplementation of a competition case-handling decision as provided for in clause 1 of this Article must be effected by the president of the hearing where the decision was declared. Where such president is no longer a member of the Competition Council, the chairman of the Competition council shall effect such amendment and/or supplementation.

Article 134. Grant of competition case-handling decisions

Once a competition case-handling decision of the competition case-handling panel has become legally effective under the provisions of the Article 106 of the Competition Law, the panel must grant such decision, printed with the words For execution, to the person in favor of whom the decision will be executed and the person who must execute and the person who must execute it.

The competition case-handling panel must explain to the person in favor of whom the decision will be executed and the person who must execute it about their right to request execution of the decision, the time limit for making such request and the obligation to execute the decision.

Article 135. Interpretation of competition case-handling decisions

1. The person in favor of whom a competition case-handling decision will be executed, the person who must execute it, person with interest or obligations related to the execution, the civil judgment-enforcing agency and other agencies responsible for organizing the execution of the decision shall be entitled to request in writing the competition case-handling panel to interpret unclear points in such decision for execution.

Within 15 days as from the date of receipt of such request, the competition case-handling panel must prepare a written interpretation and send it to the requesting person and the persons with interests and obligations related to the execution of the competition case-handling decision.

2. The president of a hearing shall have to interpret the competition case-handling decision of the competition case-handling panel must be based on the minutes of the hearing and the deliberation for issuing the competition case-handling decision as provided for in Article 113 of this Decree.

Section 9. COMPETITION CASE-HANDLING DECISIONS OF THE CO PETITION-MANAGING AGENCY

Article 136. Principle for issuance of competition case-handling decisions by the co petition-managing agency

The issuance of competition case-handling decisions by the competition-managing agency must comply with the following principles:

1. Competition cases involve acts of unfair competition falling within the setting competence of the competition-managing agency specified at Point d, Clause 2, Article 49 of the Competition Law.

2. A competition case-handling decision may be issued only after investigation has been conducted and based on the contents of formal investigation provided for in Clause 2 of Article 89, the investigation report provided for in Clause 2, Article 93 of the Competition Law, extenuating circumstances and aggravating circumstances specified in Clause 3, Article 85, and other relevant provisions of this Decree and the law on handling of administrative violations.

Article 137. Contents of a competition case-handling decision of the co petition-managing agency

1. A competition case-handling agency decision of the competition-managing agency regarding an act of unfair competition must contain the following principal contents:

a. Serial number and date of the decision;

b. Names and addresses of the complainant, the investigated party, persons with related interests or obligations, lawful representatives and lawyers of the complainant, the investigated party and/or persons with related interests or obligations;

c. Violated articles and clauses of the Competition Law (if any);

d. Summary of the case;

e. Analysis of the case;

f. Conclusions on the violation of the law on competition; analysis of evidence of the violation; analysis of evidence of the non-violation of the law on competition; aggravating circumstances, extenuating circumstances. If the investigated party did not violate the Com petition Law, the decision must clearly state the grounds for ascertaining that the investigated party did not violate the law on competition and the honor, legitimate rights and interests of such party must be restore;

g. Conclusions on the handling of the case, stating the handling decisions of the competition-managing agency regarding the act of violation, the charge for handling the competition case-handling decision.

2. The Trade Ministry shall be responsible for the issuing the form of competition case-handling decision of the competition-managing agency.

Section 10. COMPLAINT ABOUT COMPETITION CASE-HANDLING DECISIONS, INITIATION OF LAWSUITS AGAINST COMPLAINT-SETTLING DECISIONS

Article 138. Complaints about competition case-handling decisions

The lodging of complaints about competition case-handling decisions and the settlement of such complaints shall comply with the provisions of Section 7 of the Competition Law.

Article 139. Referral of competition case dossiers in cases where lawsuits against complaint-settling decisions are accepted by courts

1. Where a lawsuit against the decision on settling the complaint about a competition case-handling decision is accepted by a court under the provisions of Clause 1, Article 115 of the Competition Law, the Trade Minister or the chairman of the Competition Council shall have to order the referral of the competition case dossier to the court within 10 working days as from the date of receipt of the Courts request.

2. A competition case dossier stated in Clause 1 of this Article shall comprise:

a. The dossier of the co plaint about the competition case, as mentioned in Article 58 of the Competition Law;

b. The investigation report, as mentioned in Article 93 of the Competition Law;

c. The competition case-handling decision;

d. The decision on settling the complaint about the competition case-handling decision.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 140. Implementation effect

This Decree takes effect 15 days after its publication in « CONG BAO ».

Article 141. Organization of implementation

1. The Trade Minister shall be responsible for organizing the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of Government-attached agencies, and presidents of Peoples Committees of provinces and centrally-run cities shall have to implement this Decree.

 

 

ON BEHALF OF THE GOVERNMENT
PRIME MINISTER

 

 

 


Phan Van Khai

 

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Thuộc tính Văn bản pháp luật 116/2005/ND-CP

Loại văn bảnNghị định
Số hiệu116/2005/ND-CP
Cơ quan ban hành
Người ký
Ngày ban hành15/09/2005
Ngày hiệu lực10/10/2005
Ngày công báo...
Số công báo
Lĩnh vựcDoanh nghiệp, Thương mại
Tình trạng hiệu lựcCòn hiệu lực
Cập nhật16 năm trước
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Lược đồ Decree No. 116/2005/ND-CP of September 15th, 2005, detailing the implementation of a number of articles of the Competition Law.


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        Decree No. 116/2005/ND-CP of September 15th, 2005, detailing the implementation of a number of articles of the Competition Law.
        Loại văn bảnNghị định
        Số hiệu116/2005/ND-CP
        Cơ quan ban hànhChính phủ
        Người kýPhan Văn Khải
        Ngày ban hành15/09/2005
        Ngày hiệu lực10/10/2005
        Ngày công báo...
        Số công báo
        Lĩnh vựcDoanh nghiệp, Thương mại
        Tình trạng hiệu lựcCòn hiệu lực
        Cập nhật16 năm trước

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              Văn bản gốc Decree No. 116/2005/ND-CP of September 15th, 2005, detailing the implementation of a number of articles of the Competition Law.

              Lịch sử hiệu lực Decree No. 116/2005/ND-CP of September 15th, 2005, detailing the implementation of a number of articles of the Competition Law.