Tài liệu Enforcement of intellectual property rights with foreign elements of the vietnam people’s public security in the current period.

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MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HANOI LAW UNIVERSITY NGUYỄN VĨNH DIỆN THE ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS WITH FOREIGN ELEMENTS IN VIETNAM OF PEOPLE’S PUBLIC SECURITY IN CURRENT PERIOD Major : International Law Code : 62.38.01.08 SUMMARY OF THE DOCTORAL THESIS ON LEGAL STUDIES HANOI - 2014 The thesis is completed in: HANOI LAW UNIVERSITY Supervisors: 1. Assoc. Prof. Dr. PHÙNG THẾ VẮC 2. Assoc. Prof. Dr. HOÀNG PHƯỚC HIỆP Reviewer 1: Prof. Dr. Lê Hồng Hạnh Reviewer 2: Assoc. Prof. Dr. Nguyễn Trung Tín Reviewer 3: Dr. Vũ Đức Long The thesis was defenced in the thesis examination board at Hanoi Law University at ........... on date:..................2014 For more details of the thesis, please visit: 1. The National Library 2. Library of Hanoi Law University LIST OF THE AUTHOR’S RESEARCH PROJECTS RELATED TO THE THESIS 1. Nguyễn Vĩnh Diện (2008), Enforcement of intellectual property in the condition that Vietnam is a member of WTO and issues set forth for people’s public security, Scientific title at the academy level, Academy of Public Security, Hanoi; 2. Nguyễn Vĩnh Diện (2009), “Intellectual property rights in Vietnamese Laws”, Commercial Journal (8), Hanoi; 3. Nguyễn Vĩnh Diện (2009), “Several main committments of Vietnam on the enforcement of intellectual property rights when joining WTO”, Commercial Journal (20), Hanoi; 4. Nguyễn Vĩnh Diện (2013), “Discussion about definition of commercial scale in Law on Intellectual Property Rights of Vietnam”, Crime Prevention and Fighting Journal (2), Hanoi; 5. Nguyễn Vĩnh Diện (2008), International Private Law Textbook, People’s Public Security Academy, Hanoi. 1 INTRODUCTION 1. Rationale of the thesis research Nowadays, intellectual works gain a special significance in the spiritual and material life of the human, and reflect inevitable development tendency of human society based on knowledge economy. Due to that important role of intellectual property, many countries have paid special attention to the field of intellectual property, considering it as the platform to promote the economy development of the country; and simutaneously the law enforcement against intellectual property right infringement has always caught attention in international cooperation and exchanges. From a country with a low starting point, in order to develop quickly and sustainably to gradually assert its position, Vietnam is necessary to pay special attention to science and technology market and to promote enforcement activities of intellectual property rights, including intellectual property rights with foreign elements in Vietnam. However, how to maintain national security, ensure social order and safety, and acquire human intelligence to develop country and expand international cooperation and exchanges is the big problem facing our country in the current period. Enforcing intellectual property rights with foreign elements in Vietnam is directly related to functions and duties of people’s public security forces. However, because of many different reasons , PPS forces still do not effectively promote all working aspects in the protection of national security and maintenance of social order and safety in general and intellectual property rights enforcement with foreign elements in Vietnam in particular. For the above reasons, the author has selected the title "Enforcement of intellectual property rights with foreign elements inViet Nam of people’s public security in the current period" for the doctoral thesis in order to meet theoretical and practical requirements. 2. Purposes and duties of research With regard to the research purposes, the thesis clarifies the theoretical and practical issues on the enforcement of intellectual property rights with foreign elements in Vietnam of people's public security force whereby proposing solutions to improving the efficiency of the enforcement of intellectual property rights with foreign elements in Vietnam of people's public security forces in the current period. With regard to research duties, the thesis sets out following main duties: (i) Analysis and assess national and international research situations of intellectual property rights with foreign elements and the enforcement of intellectual property rights with 2 foreign elements, whereby finding contents that need further clarification and research in the thesis; - Analyze and evaluate, from the perspective of legal science, general awareness of intellectual property rights with foreign elements in Vietnam and the enforcement of intellectual property rights with foreign elements in Vietnam of people's public security forces; - Survey situations of acts of infringement of intellectual property with foreign elements in Viet Nam and find out the causes of the infringement; - Analyze and evaluate enforcement activities of intellectual property rights with foreign elements in Viet Nam of people's public security forces, and then propose solutions to improving the effectiveness of the enforcement of intellectual property rights with foreign elements in Viet Nam of people’s public security forces. 3. Research object and scope of the thesis Regarding research object: The thesis studies some theoretical and practical issues of the enforcement of intellectual property rights with foreign elements in Vietnam of people’s public security force. Regarding research scope: - Carry out research on activities of the people’s public security force in the enforcement of intellectual property rights with foreign elements in Vietnam through the application of administrative and criminal measures based on functions and duties prescribed by law. The application of civil measures and others is not covered by the scope of thesis research. - Research site is on the territory of Vietnam, focusing on some selected typical areas, such as Ha Noi City, Ho Chi Minh City, Hai Phong, Lang Son, Quang Ninh, Nghe An, Ha Tinh, Da Nang, Dong Nai, Tay Ninh. - Study period is from 2003 to 2014, especially since Vietnam joined the World Trade Organization (WTO) to present. 4. Research method of the thesis The thesis is researched based on the methodology of Marxism - Leninism, Ho Chi Minh’s ideology, opinions, guidelines and policies of the Party and laws of Vietnam in the fields related to the thesis title. During the study, the author focused on use of specific research methods, such as analysis, synthesis, comparation of law, sociology investigation and history. 5. New contributions of the thesis in scientific aspects 3 - Clarify the connotation definition of intellectual property rights with foreign elements and enforcement of intellectual property rights with foreign elements in Vietnam, contributing to completing theory of legal science in our country in the field indicated; - Clarify the roles, position, functions and duties of the people's public security force and requirements for people's public security in the enforcement of intellectual property rights with foreign elements in Vietnam in the conditions of international integration; - Forecast foreign and domestic situations related to the enforcement of intellectual property rights with foreign elements in Vietnam, propose scientific solutions to improving the enforcement of intellectual property rights with foreign elements in Vietnam of people’s public security force in the current period. 6. Theoretical and practical significance of the thesis As regards theoretical significance, research results of the thesis can be used as foundation to propose and supplement theoretical issues of the enforcement of intellectual property rights with foreign elements in Viet Nam, especially theory of the prevention and fighting of crimes and violations of intellectual property rights with foreign elements in Viet Nam in the current period. As regards practical significance, the thesis can be used as a material to research, teach at the universities, or a material to cultivate knowledge of international law for officers and soldiers of people’s public security in combating against crimes and violations of intellectual property rights with foreign elements in Vietnam in the conditions of international integration. 7. Thesis structure In addition to the introduction, conclusion, list of references, list of the author's research projects related to the thesis title, thesis consists of four chapters as follows: Chapter 1. Overview of the research situation related to the thesis in Vietnam and countries over the world; Chapter 2. General awareness of enforcement of intellectual property rights with foreign elements in Vietnam of people’s public security force; Chapter 3. The real situation of enforcement of intellectual property rights with foreign elements of people’s public security; Chapter 4. Some solutions to improving the efficiency of intellectual property rights with foreign elements in Vietnam of people's public security forces. 4 Chapter 1 OVERVIEW OF THE RESEARCH SITUATION RELATED TO THE THESIS IN VIETNAM AND COUNTRIES OVER THE WORLD 1.1. The research situation in countries over the world The reseach projects have reflected: some countries have built a relatively complete legal system on intellectual property, established agencies responsible for intellectual property rights enforcement, focused on the protection of intellectual works of organizations and individuals in their countries (especially those works related to national security and social order and safety), and exploited foreign intellectual works. Also, they have reflected roles of the international treaties (especially the TRIPS Agreement) and of international organizations (WTO, EU, ASEAN) in formation of intellectual property rights enforcement mechanisms, etc. 1.2. The research situation in Viet Nam The research projects has consisted of the theoretical aspects, such as the protection conditions, intellectual property rights enforcement measures, legal and practical aspects of the protection and combat of intellectual property rights, etc. There is no project mentioning the enforcement of intellectual property rights with foreign elements in Vietnam of people's public security forces as an state management agency in social order and safety and national security, as well as functional agencies in investigating and handling crimes under criminal proceedings, etc. 1.3. Issues that need further research - Generalize general issues of intellectual property rights and intellectual property rights enforcement, continue to research to introduce the definition and characteristics of the enforcement of intellectual property rights with foreign elements in Vietnam; - Clarify the legal basis regulating the functions and duties of the people's public security forces in the enforcement of intellectual property rights with foreign elements in Vietnam; - Survey reality of laws and violations of intellectual property rights with foreign elements in Vietnam, indentify causes and conditions led to this situation; - Survey and assess the operation situation of people’s public security forces in the enforcement of intellectual property rights with foreign elements in Vietnam; - Forecast world’s and Vietnam’s situations related to the enforcement of intellectual property rights with foreign elements in Vietnam, thereby bringing out solutions to improving the efficiency of the enforcement of intellectual property rights with foreign elements in Vietnam of people's public security force in the following years. 5 Chapter 2 GENERAL AWARENESS OF ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS WITH FOREIGN ELEMENTS IN VIETNAM OF PEOPLE’S PUBLIC SECURITY 2.1. Some theoretical issues of intellectual property rights and intelletual property rights with foreign elements in Vietnam 2.1.1. Some theoretical issues of intellectual property rights 2.1.1.1. Definition of intellectual property rights Intellectual property rights are the rights given to an organization or individual over the creations of their minds, including copyright and copyright-related rights, industrial property rights and rights to plant varieties (Article 4 of Law on Intellectual Property Right). The definition indicates diversification of intellectual property right holders, including individuals and organizations, and the object of intellectual property rights is “intellectual property” , including copyright and related rights, industrial property rights and rights to plant varieties. Intellectual property rights should be adequately and comprehensively defined in following aspects: - Intellectual property rights are a type of legal relationshintellectual propertys (intellectual property relationshintellectual property); - Intellectual property rights are a type of civil rights; - Intellectual property rights are a legal institution which is a collection of delegated legislation to adjust groups of intellectual property relationshintellectual propertys (this is research object of the thesis). 2.1.1.2. Charateristics of intellectual property rights - The object of intellectual property rights is intellectual property which is immaterial, so it is easy to be infringed if being presented by some form of material. - Intellectual property rights are absolutely territorial-limited. It means that these rights are valid within the territory of a country where they are enforced. - Protection of intellectual property rights is often limited in terms of time. - Intellectual property rights are restricted by regulations of laws if the exploitation and utilization of their objects are involved in common benefits of the community. 2.1.1.3. Contents of intellectual property rights - Personal rights (also called spiritual rights) are rights given to individuals and organizations over the creations of their minds, announcement and popularization of 6 objects of intellectual property rights and these rights often bear personal characteristics of intellectual property right holders. Personal rights are divided into two types: nonproperty personal rights and property-related personal rights. - Property rights (also called economic rights) of intellectual property right holders are rights to enjoy material benefits from their intellectual works which are protected by the State. These rights have a strong attachment to personal ones. Its manifestation is that if one person has personal rights over his or her intellectual property, he or she will simultaneously have property rights over this intellectual property. According to nature and characteristics of each object of intellectual property, contents of property rights of intellectual property right holders are differently stintellectual propertyulated for different types of intellectual property rights. 2.1.1.4. Violation of intellectual property rights Violation of intellectual property rights is an action against laws taken by an entity with civil capacity which harms intellectual property rights that are recognized and protected by laws. - Violation of intellectual property rights is always made by human; - Violation of intellectual property rights is acts against regulations of laws which harms legal rights and interests of intellectual property right holders who are recognized and protected by laws. Acts violating intelletual property rights include acts of infringement of copyright (Article 28 of Law on Intellectual Property), acts of infringement of related rights (Article 28 of Law on Intellectual Property); acts of infringement of industrial property rights (Article 126, 127, 129, 130 of Law on Intellectual Property); acts of infringement of rights to plant viarieties (Article 188 of Law on Intellectual Property); - Violation of intellectual property rights are acts which contain fault elements of those people who accidentally or intentionally infringe the intellectual property rights; - Those people who infringe the intellectual property rights must have civil capacity; Some cases in which limitations of intellectual property rights are stintellectual propertyulated, although exploitation and utilization of creations of holder of intellectual property rights are not allowed by them, are not considered to be the infringement of intellectual property rights. 2.1.2 Definition and characteristics of intellectual property rights with foreign elements in Vietnam. 2.1.2.1. Definition of intellectual property rights with foreign elements in Vietnam 7 intellectual property rights with foreign elements in Vietnam are rights of foreign organizations and individuals given over their creations of their minds recognized and protected in Vietnam, including copyrights, related rights of the foreigners, foreign legal entities over intellectual works published or disseminated first time in Vietnam or created and expressed in a certain form in Vietnam which are protected by the Vietnam law provisions and international treaties to which Vietnam is a member; industrial property rights, rights to plant varieties of foreigners and foreign legal entities over objects of industrial property rights and objects of rights to plant varieties recognized and protected by Viet Nam law provisions and international treaties to which Vietnam is a member. - Holders of intellectual property rights with foreign elements in Vietnam include foreign organizations, individuals. They can be authors or owners of copyrights, people with related rights, owner of industrial property objects,etc. - The legal basis for intellectual property rights being arisen is the provisions of Vietnamese laws and international treaties to which Viet Nam is a member. - Intellectual property rights of foreign individuals and organizations are recognized and protected by State of Vietnam in accordance with provisions of Vietnamese laws and international treaties to which Viet Nam is a member. 2.1.2.2. Characteristics of intellectual property rights with foreign elements in Viet Nam - The development of intellectual property rights with foreign elements in Vietnam is always associated with viewpoints and policies of our Party and State in innovation of legal thinking and international integration in the justice and law field. - Intellectual property rights with foreign elements in Vietnam are protected and enforced in accordance with international law, Vietnamese laws, traditions and cultures of ethnic groups of Vietnam. - Development of intellectual property rights with foreign elements in Vietnam in recent years has partly influenced psychology and lifestyle of Vietnamese people , creating "fashionable chasing effect" of a small group of Vietnamese people. - The establishment of intellectual property rights with foreign elements in Vietnam could be limited in some certain cases. 2.2. Some theoretical issues on the enforcement of intellectual property rights and intellectual property rights with foreign elements in Vietnam 2.2.1. Some theorectical issues on intellectual property rights enforcement in Viet Nam 2.2.1.1. Definition and intellectual property rights enforcement method 8 Intellectual property rights enforcement is the public power activities of state competent authorities to ensure that intellectual property rights laws are enforced strictly, thereby protecting the rights and legitimate interests of state, society, rights and legal interests of intellectual property rights holders. To enforce intellectual property rights, the state bodies is authorized to conduct more strict and powerful enforcement measures in various levels to handle violations of intellectual property rights. - Intellectual property rights enforcement by civil remedies is handling infringement of intellectual property rights under the civil proceedings. In the process of solving this infringement, people’s courts apply the measures, such as forcing to terminate the infringement; forcing apology and public correction; forcing to execute civil obligations; forcing to compensate for damages; forcing to destroy, forcing to distribute or put into use goods without commercial purposes. - Intellectual property rights enforcement by administrative measures is the enforcement in which the state competent authorities handle intellectual property rights violation cases according to the order and procedures of administrative law provisions, such as: warning; fines; confiscating counterfeit goods as intellectual property rights, raw materials, materials and means used mainly for the production and trading of intellectual property rights counterfeit goods, etc. In some cases, such as intellectual property rights infringement with risks causing serious harms to consumers or society; to ensure the implementation of the administrative penalty decision, the state competent authorities are allowed to apply some temporary emergency measures to prevent the law evasion, ensure administrative sanctions prescribed by law. In addition, state competent authorities can also apply some measures to control the export and import of goods related to intellectual property rights at the border, including suspension of customs procedures for goods suspected as intellectual property rights infringement, etc. - Enforcement by criminal measures, is the enforcement in which the state competent authorities handle intellectual property rights infringements by the provisions of the criminal law. Specifically, if an individuals implements intellectual property rights infringement with enough evidence of crime, the state competent authorities will apply criminal liability to this acts of infringement according to related charge. 2.2.1.2. Meaning of intellectual property rights enforcement in Viet Nam. - Effective enforcement of intellectual property rights in Vietnam is a factor against the risk to the country's backwardness in science and technology. 9 - Effective enforcement of intellectual property rights encourages creative works, commercial competition in a healthy way, prevents the risk of revenue losses and breaks the domestic market. - Effective enforcement of intellectual property rights is the protection of benefits of the consumer. - Effective enforcement of intellectual property rights in Vietnam also contributes to protecting national security sovereignty and preserving social order and safety. - Enforcement of intellectual property rights in Vietnam will create a healthy intellectual property rights environment, attract international trade relation development, contribute to the successful implementation of the guidelines and policies of international integration of our Party and State. 2.2.2. Definition, characteristics of the enforcement of intellectual property rights with foreign elements in Viet Nam 2.2.2.1. Definition, characteristics of intellectual property rights enforcement with foreign elements in Viet Nam - In terms of content, intellectual property rights enforcement with foreign elements in Vietnam includes all activities of State competent authorities to create mechanisms to deal with all infringements of intellectual property rights with foreign elements in Viet Nam. - In terms of the form, intellectual property rights with foreign elements in Vietnam is enforced to comply with the provisions of the law on methods, sequences, procedures and jurisdiction consistent with the characteristics of each object of intellectual property rights with foreign elements in Vietnam. - In terms of the holders, the enforcement of intellectual property rights with foreign elements in Vietnam includes People’s Courts, Market Management, Customs agencies, People’s public security, People’s Committee, specialized inspectors. These agencies enforce intellectual property rights with foreign elements in Vietnam by itself or in collaboration with other agencies, organizations or individuals to build and deploy mechanisms to handle the above intellectual property rights infringement. - In terms of purposes, the enforcement of intellectual property rights with foreign elements in Vietnam is to prevent and combat violations of intellectual property rights with foreign elements in Vietnam, to protect the legitimate interests of State and society, rights and legal interests of intellectual property rights holders with foreign elements in Vietnam, while creating a healthy legal environment to promote creative activities of people. 10 2.2.2.2. Characteristics of the enforcement of intellectual property rights with foreign elements in Viet Nam - The order and procedures for state agencies authorized in the application of intellectual property rights enforcement with foreign elements in Vietnam is mainly comply with Vietnam law, without application of foreign law, except in special cases where Viet Nam laws or international treaties which Vietnam is a member have other provisions. - Intellectual property rights enforcement activitywith foreign elements in Vietnam profoundly affected by intellectual property rights international treaties which Vietnam is a contracting party (especially the TRIPS Agreement). - Any entity violating intellectual property rights laws with foreign elements in Vietnam are equal in legal status during handling and liability incurred by their behavior causes. - For jurisdictions of intellectual property rights enforcement with foreign elements in Vietnam, Vietnam law generally provides that "narrower" than intellectual property rights enforcement in general. 2.3. Roles, functions and duties of the People’s public security force in the enforcement of intellectual property rights with foreign elements in Vietnam 2.3.1. Roles of the People’s public security force in intellectual property rights with foreign elements in Viet Nam the enforcement of - Role of the People's public security force in the enforcement of intellectual property rights with foreign elements in Vietnam reflected in the "empower" to People's public security direct implementation of measures to prevent, fight, handle acts violating law of intellectual property rights with foreign elements in Vietnam by administrative measures and criminal measures. - Role of People’s public security force is also promoted through coordinating relations with other agencies, organizations and individuals (People’s Committee, Customs Agencies, Market Management, People’s Courts ...) in activities to prevent, detect and treat the infringement of intellectual property rights with foreign elements in Viet Nam. 2.3.2. Functions of People’s public security force in the enforcement intellectual property rights with foreign elements in Viet Nam of The function of People’s public security force is mainly operation aspects, associated with the structure, inculude People’s security and People’s police, with advisory function to State and Party to protect and preserve national security and social order and safety; uniform state management in national security and social order and 11 safety; fight and plot against activities of hostile forces, crimes and law breach in national security and social order and safety. With the above regulations, People’s public security force has three basic functions: advisory; state management in national security and social order and safety and directly struggle with hostile forces, crimes, other violations of law. For each function, the force required to conduct synchronously many aspects of work on a consistent basis with the economic and social conditions of our country. For the advisory function of the People’s public security force in the enforcement of intellectual property rights with foreign elements in Vietnam, People’s public security needs to synchronously conduct operations , such as information gathering, analysis, evaluation, forecasting and proposing to Party, State to issue and direct guidelines, policies and legislation on the enforcement of intellectual property rights with foreign elements in Vietnam affecting national security and social order and safety, economy, society, defense and foreign affairs of the country; Short-term and long -term planning in the enforcement of intellectual property rights with foreign elements in Vietnam to get Government approval, coordinate with ministries, branches and People's Committees at all levels in the implementation of plans; particintellectual propertyate in the evaluation of eco-society projects, society by ministries , agencies and localities related to purchasing, sale, transferring of intellectual property rights with foreign elements in Vietnam that the objects of these contract associated with national security and social order and safety... For state management functions in national security and social order and safety related to the enforcement of intellectual property rights with foreign elements in Vietnam, People’s public security needs to conduct works, including propaganda, mass education in respecting and the enforcement of intellectual property rights with foreign elements in Vietnam; guidance, support businesses, organizations and individuals (especially foreign organizations, individuals in Vietnam) to effectively themselves protect their intellectual property rights ... Perform functions of direct fight, suppress the enemy forces, crimes and law violation of intellectual property rights with foreign elements in Vietnam, People’s public security force is necessary to carry out the following activities: discover, verify, collect information and evidence of infringement of intellectual property rights with foreign elements in Viet Nam, in coordination with the competent agencies to handle violations in accordance with law; organize, direct and conduct investigations under the criminal procedure, the struggle to prevent the infringement of intellectual property rights with foreign elements in Viet Nam … 12 Related to handle violation intellectual property rights with foreign elements in Vietnam with criminal measures, Criminal code year 1999 (amended and supplemented in 2009) provides for intellectual property rights infringement offenses as: Breaching regulations in granting of industrial property rights protection (Article 170) ; Infringing upon copyrights and related rights (Article 170a); Infringing upon industrial property rights (Article 171); Counterfeit goods trading and manufacturing (Article 156) ; Manufacturing, trading counterfeit goods of food, foodstuff, medicine, preventive medicine (Article 157); Manufacturing, trading counterfeit goods of livestock feed, fertilizers, veterinary medicine, plant protection drugs, plant varieties and animal breeds (Article 158); Breaching regulations on publishing, publishing of newspaper, audio discs, video discs, video tapes or other publications (Article 271 of the Criminal Code 1999) ... 2.3.3. Duties of People’s public security force in intellectual property rights enforcement with foreign elements in Viet Nam The task of People’s public security force is specific activities conducted in a certain period in accordance with the functions of the People’s public security force. To accomplish its mission, People’s public security force must use authority, conditions , technical facilities and work measures, coordination with other agencies, organizations and individuals on the basis of legal provisions, People’s public security force has the task of national security and social order and safety protecting related to intellectual property rights with foreign elements in Viet Nam, such as information gathering, analysis, evaluation, forecasting and proposal to Party and State to issue guidelines and policies, legislation, protection strategies of national security, social order and safety preservation, petition requirement combination of strategy of national security protection, social order and safety preservation with strategy of building, development of economy, society, defence and foreign affairs of State; protecting freedom, democracy, life and property of people, protecting senior leaders of Party, State and international visitors, protecting significant events, key objectives, projects in national security strategy, foreign representative bodies, international organization representatives in Vietnam, individuals keeping or closely related to State secrets. Chapter 3 THE REAL SITUATION OF ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS WITH FOREIGN ELEMENTS OF PEOPLE’S PUBLIC SECURITY 13 3.1. The reality of law and law breach of intellectual property rights with foreign elements in Vietnam 3.1.1. The reality of enforcing intellectual property rights with foreign elements in Vietnam 3.1.1.1. Vietnamese law on enforcing intellectual property rights with foreign elements in Vietnam The part presents briefly about regulations of Vietnamese law relating to the enforcement of intellectual property rights having foreign elements in Vietnam. Although the law of Vietnam so far has had no direct regulations of intellectual property rights with foreign elements and their enforcement in Vietnam, the current laws, from the Constitution to relevant legislation and bylaw documents, have shown indirectly the application of law to the above relations. 3.1.1.2. International treaties that Vietnam is a member of and have relations to the enforcement of intellectual property rights having foreign elements in Vietnam The part shows several international treaties that Vietnam is a member of and have regulations on protection and enforcement of intellectual property rights. The above treaties do not have direct regulations on the implementation of intellectual property rights with foreign elements in Vietnam; however, expressed princintellectual propertyles, solutions and requirements on the enforcement of intellectual property rights have huge impacts on the construction, application and improvement of Vietnamese law according to general international standards on intellectual property. 3.1.2. The real situation of violation of intellectual property rights having foreign elements in Vietnam 3.1.2.1. The fact of acts of infringement of copyrights and rights relating to foreign elements in Vietnam The part presents the fact of acts of infringement of copyrights and related rights having foreign elements in Vietnam recently. Holders of law violation were diverse; illegal acts were performed sophisticatedly in different fields, namely areas of printing, publishing, advertising, radio and television, etc. Particularly, enemy forces have made corrupt use of copyrights and related rights having foreign elements in Vietnam to disseminate and against revolutionary career of Vietnamese Party and State. It puts a heavy responsibility on people’s public security in struggling, preventing and resisting the above illegal actions. 3.1.2.2. The real situation of violating industrial property rights having foreign elements in Vietnam 14 The scene of the violation reality of industrial property rights having foreign elements in Vietnam is descrintellectual propertyted concretely in this part, such as: its complicated happening and dependence on efficiency of law enforcement of competent state agencies; it happens to all kinds of goods and products, especially essential products; holders of the violation of industrial property rights having foreign elements in Vietnam, who are belonging to many classes, have used a lot of subtle tricks to evade the law and deal with the control of authorized state agencies; the production, trading and consumption of products violating industrial property rights having foreign elements do not only damage economically but also have serious impacts on lives and health of humans, affecting national security and social order and safety. It sets out the responsibilities of people’s public security force in the prevention of the said violations to fulfill the functions and duties prescribed by law, etc. 3.1.2.3. The real breach situation of rights to plant varieties having foreign elements in Vietnam The part focuses on legal violation on the rights to plant varieties having foreign elements in Vietnam, mainly food crops. Besides, it is the import of some types of trees that may have bad impacts on living environment of Vietnam. It sets out responsibilities to functional agencies and people’s public security force in protecting food security and ecological environment of Vietnam. 3.1.2.4. Reasons of the legal violation situation of intellectual property rights having foreign elements in Vietnam - The system of legal documents of Vietnam on the protection and enforcement of intellectual property rights with foreign elements also has many shortcomings - The mechanisms to guarantee the enforcement of intellectual property rights having foreign elements in Vietnam are inappropriate and ineffective. - The propaganda and education of the sense of law on the enforcement of intellectual property rights having foreign elements in Vietnam have not been properly respected. - The downside impact of market mechanisms and the influence of international integration process. 3.2. The real enforcement of intellectual property rights with foreign elements in Vietnam of people’s public security force 3.2.1. Structure and organization of people’s public security in the enforcement of intellectual property rights with foreign elements in Vietnam The part presents in summary about structure of people’s public security in the enforcement of intellectual property rights with foreign elements in Vietnam. At present, 15 the people’s public security has not had a specialized unit responsible for the enforcement of intellectual property rights having foreign elements but the activities are integrated with the activities of other agencies (people’s security and people’s police). 3.2.2. The concrete activities in the enforcement of intellectual property rights having foreign elements in Vietnam of people’ public security 3.2.2.1. The work of advisory, commanding and directing the prevention of crime and legal violations of intellectual property rights having foreign elements in Vietnam - Undertook to advise the Party and State to construct commanding and directing documents on protecting national security and preserving social order and related to the enforcement of intellectual property rights having foreign elements in Vietnam. - Ministry of Public Security has had many texts directing the protection of economic security in accordance with the real situation, such as grasping situation, advising to identify partners in foreign relations and objects need to struggle, evaluating key economic projects; building and deploying projects of ensuring security and order to serve economic and social development at key economic areas, etc. - Ministry of Public Security issued the legal documents relating to the enforcement of intellectual property rights having foreign elements in Vietnam and the performance of management functions of state secret protection under the sector. - Ministry of Public Security has coordinated with relevant agencies to contribute to build decree detailing the provisions of the Law on Intellectual Property. 3.2.2.2. State management on national security and social order relating to the enforcement of intellectual property rights having foreign elements in Vietnam - Grasp the situation on the basic requirements, serve to prevent and fight crime and violation of intellectual property rights with foreign elements in Vietnam. The receiving channels of people’s public security mostly are secret network, denouncing letter, information from other state management agencies, etc. - Perform basic investigations to detect crime and violation of intellectual property rights having foreign elements, to clarify the causes and arising and development conditions of crime and law violations in this area. - Detect legal violations and crimes infringing intellectual property rights having foreign elements, promptly identify the location, the spots signs of production and trade in counterfeit goods to carry out the control and handling measures. - Be initiative to exchange and discuss with enterprises, require agencies and enterprises to self-examine and self-overcome minor infractions and stabilize production. 16 - Identify methods and tricks of crimes; and through mass media, propaganda and educate the sense of law for all citizens, agencies, businesses and society as a whole to understand his rights and responsibilities in detecting and denouncing crime and legal violation on intellectual property rights having foreign elements to legal protection agencies. - Focus detecting many economic and political uncertainties and more clarify the intent of the enemy forces through economics affecting to change political regime in Vietnam to advise the Party and the State to direct corrective measures, contributing to protect path policies on economic and social development and protection of national interests. At the same time, struggling to access the outdoor cases at many internal fasteners, metabolic effects, collects economic secrets, state secrets against the social system in our country. - Coordinate with other units to formulate a list of state secrets of ministries, branches and localities; advise building security regulations, provisions dealing with the behavior revealed, lost secrets and state secrets work; recruit people working in essential parts of the state security agencies; inspection and detection of overcoming many loopholes and shortcomings in the protection of state secrets. 3.2.2.3. The work of directly fight, suppress infringing activities of national security and social order and safety related to the enforcement of intellectual property rights having foreign elements in Vietnam To perform their functions and duties, based on the application of protection measures stintellectual propertyulated by law, the people’s public security force conducted struggling, repression and defeat every conspiracy of the enemy forces enemies and criminals taking advantage of intellectual property rights having foreign elements in Vietnam to encroach national security and social order and safety, against the State and social system in Vietnam. - Fight against the abusing of intellectual property rights having foreign elements to infringe national security on the fields of culture, ideology, economic security, internal security; information and communication, etc. - On the abuse of intellectual property rights with foreign elements to infringe social order and safety on the fields of production, trade and consumption of counterfeit goods; production, trafficking and consumption of fake goods being foods, medicines; fertilizer, animal feed, etc. 3.2.3. Overall comment and assessment of the enforcement of intellectual property rights having foreign elements in Vietnam of people’s public security forces 17 3.2.3.1. Strengths in the enforcement of intellectual property rights having foreign elements in Vietnam of people’s public security forces - Always positive and proactive in the attack, suppressing crime and legal violation of intellectual property rights having foreign elements in Vietnam. - Take the initiative to work effectively on the situation, baseline surveys to detect violations of the law and crimes infringing intellectual property rights with foreign elements in Vietnam, to clarify the causes and arising and development conditions of the violation and crimes. - Be initiative to propose with the authorities to strengthen the state management measures in the field concerned; and recommend enterprises to actively apply science technology to protect their intellectual property rights before the imminent unlawful acts of infringement. - Cooperate with the authorities to detect, investigate and handle legal violations and crimes infringing intellectual property rights having foreign elements in Vietnam. At the same time, the timely detection of the province, spots signs of production, trafficking counterfeit goods violating intellectual property rights to conduct inspection measures and handling. - Be good at propaganda, dissemination, legal education on intellectual property rights, proactive detection of expression in violation of a number of organizations, individuals and businesses to actively exchange, discuss with the businesses, and at the same time, required the agencies, businesses and individuals to manually check and fix minor infractions. That have good effects on legal education and create conditions for enterprises to develop production stability. - Have identified the main ways and tricks of the crime, thereby applying protection measures appropriate to the nature, characteristics and situation of crime to fight resolutely and thoroughly; at the same time and through the mass media to disseminate to agencies, businesses and social organizations to understand the crimes mentioned above to detect, denounce and prevent as well as coordinate with the people’s public security to struggle and prevent. - Coordination between people’s public security forces with other agencies and other forces in the enforcement of intellectual property rights having foreign elements in Vietnam has been focused and brought significant results, especially in prevention activities, dealing with the crimes committing national security, producing crime, trafficking in counterfeit goods and control the export and import of goods across the border, etc. 3.2.3.2. Shortcomings in the enforcement of intellectual property rights having
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