According to Article 11 of the Law on the Organization of People's Courts, the Court implements a two-level trial system. The first-instance judgments and decisions of the Court may be appealed or protested in accordance with the provisions of procedural law. According to Article 55 of the 2006 Ordinance, the litigant or the litigant's representative has the right to appeal, the People's Procuracy at the same level or one level above has the right to protest the judgment or decision to temporarily suspend or stop the settlement of the case of the Court of First Instance to request the Court of One Level above to conduct the appellate trial. The appellant must file an appeal; the People's Procuracy shall protest in writing. The appeal or protest must clearly state: the content of the decision of the judgment or decision of the Court of First Instance being appealed or protested; the reason for the appeal or protest; the request of the appellant or protester.
Appeals and protests shall be sent to the Court of First Instance that has resolved the case. Within seven days from the date of receipt of the appeal or protest or from the date the appellant presents the receipt of the advance payment of the appeal fee (if he/she is required to pay such amount), the Court of First Instance shall send the appeal or protest together with the entire case file to the Court of Appeal. When sending the appeal or protest together with the entire case file to the Court of Appeal, the Court of First Instance shall notify the Procuracy of the same level, the litigant and the person with rights and obligations related to the appeal, and the Procuracy shall send a copy of the protest to the litigant and the person with rights and obligations related to the appeal. The litigant and the person with rights and obligations related to the appeal or protest shall send to the Court of Appeal their opinions on the appeal or protest within seven days from the date of receipt of the notice.
The Court of Appeal shall consider the content of the appeal, protest and the part of the judgment, decision related to the content of the appeal, protest. Within sixty days from the date of receiving the complete dossier sent by the Court of First Instance, the Court of Appeal shall open the appeal hearing; in case the case has many complicated details, the time limit shall not exceed ninety days. Before the appeal hearing, the Court has the right to apply BPKCTT, temporarily suspend or suspend the settlement of the case according to the provisions of the 2006 Ordinance.
The prosecutor of the same level of the People's Procuracy must attend the appeal hearing; if absent, the hearing must be postponed. The court must send the case file to the People's Procuracy for study. Within ten
days from the date of receipt of the case file, the Procuracy must study and return the case file to the Court. The appellant and the person with rights and obligations related to the appeal or protest shall be summoned to attend the trial; if any person is absent, the Court may still proceed with the trial. The Court shall only summon experts, interpreters, and witnesses upon request of the parties and when deemed necessary for the resolution of the appeal or protest; if any person is absent, depending on each case, the Court shall decide to proceed with the trial or postpone the trial. For cases where the presence of the litigant is not required at the first instance trial or the litigant does not request to attend the appeal trial, the Court shall proceed with the appeal trial without their presence.
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The appellate court session is conducted according to the same procedures as the first-instance court session. Before considering the appeal or protest, a member of the panel of judges presents the content of the case, the decision of the first-instance judgment and the content of the appeal or protest. The appellate court has the right to: reject the appeal or protest and uphold the decisions of the first-instance judgment or decision; amend part or all of the decision of the first-instance judgment or decision; annul the first-instance judgment or decision and transfer the case file to the first-instance court for retrial in case of serious violations of procedural law or insufficient verification and collection of evidence that the appellate court cannot supplement; temporarily suspend the settlement of the case when one of the cases prescribed in Article 40 of the 2006 Ordinance occurs; annul the first-instance judgment or decision and suspend the settlement of the case when one of the cases prescribed in Article 41 of the 2006 Ordinance occurs; suspend the settlement of the case according to the appellate procedure, if the appellate trial of the case requires the presence of the appellant and he has been duly summoned for the second time but is still absent without a valid reason. In this case, the judgment of first instance shall have legal effect.
* Procedures for review and retrial
A judgment or decision of a Court that has come into legal effect may be protested under the cassation procedure when it falls into one of the following cases: there is a serious violation of procedural law; the decision in the judgment or decision is inconsistent with the objective circumstances of the case; there are serious errors in the application of the law.
A judgment or decision of the Court that has come into legal effect may be protested under the retrial procedure when one of the following cases occurs: newly discovered important details of the case that the parties could not have known when resolving the case; it has been determined that the testimony of the witness, the conclusion of the expert, the translation of the interpreter is clearly untrue or there is falsified evidence; the judge, jury, prosecutor, or court clerk intentionally falsifies the case file; the judgment or decision of the Court or the decision of the state agency on which the Court relied to resolve the case has been annulled.
The Chief Justice of the Supreme People's Court and the Chief Prosecutor of the Supreme People's Procuracy have the right to appeal under the supervisory or retrial procedures against judgments and decisions that have come into legal effect of courts at all levels, except for the supervisory or retrial decisions of the Council of Judges of the Supreme People's Court. The Chief Justice of a provincial court and the Chief Prosecutor of a provincial procuracy have the right to appeal under the supervisory or retrial procedures against judgments and decisions that have come into legal effect of district courts.
The Council of Judges of the Supreme People's Court shall only review the content of the case related to the protested decision. The Council of Judges of the Provincial Court shall review or re-trial the judgments and decisions that have come into legal effect of the District Court which have been protested. The Administrative Court of the Supreme People's Court shall review or re-trial the judgments and decisions that have come into legal effect of the Provincial Court which have been protested. The Council of Judges of the Supreme People's Court shall review or re-trial the judgments and decisions that have come into legal effect of the Courts of Appeal and the Administrative Court of the Supreme People's Court which have been protested. For judgments and decisions that have come into legal effect on the same administrative case under the jurisdiction of different levels of Court, the Court with higher authority shall review or re-trial the entire case. Within one month from the date of receipt of the protest with the case file attached, the Court must open a trial of review or re-trial. The board of cassation or retrial has the right to: not accept the appeal and uphold the judgment or decision that has come into legal effect; uphold the legally correct judgment or decision of the lower court that has been annulled or amended; annul the judgment or decision that has come into legal effect for retrial at first instance or on appeal; annul the judgment or decision that has come into legal effect and suspend the settlement of the case when one of the cases specified in Article 41 of the 2006 Ordinance occurs.
Diagram 2.1: Protecting intellectual property rights at the People's Court through administrative case settlement procedures
Petition for administrative decision, administrative violation
Court accepts application
Accept the case (if eligible to initiate)
Return the application (if not eligible to file a lawsuit)
Preparing for trial
Suspended
suspend
Bring the case to trial
first instance trial
The first instance judgment is effective.
(No w/c, w/n)
The first instance judgment has not yet taken effect (With either a Notice or a Notice)
appeal
Uphold the first instance judgment
Amendment of first instance judgment
annulment of judgment-First Instance Decision
Suspended
Cancellation of judgment and suspension
Suspend
Have a complaint
Not accepted
Appeal to the Supreme Court (if accepted)
2.2. Legal procedures for criminal prosecution of crimes of intellectual property infringement
2.2.1. Crimes of intellectual property infringement
According to the provisions of Article 212 of the Law on Intellectual Property on acts of infringement of intellectual property rights subject to criminal prosecution, "any person who commits an act of infringement of intellectual property rights that constitutes a crime shall be prosecuted for criminal liability according to the provisions of the criminal law". Research on the 1999 Penal Code shows that crimes of infringement of intellectual property rights include:
One is the crime of violating national sovereignty (Article 131 of the 1999 Penal Code).
According to the provisions of Clause 1, Article 131 of the 1999 Penal Code, anyone who commits one of the following acts causing serious consequences or has been administratively sanctioned for one of the acts specified in this Article or has been convicted of this crime, has not had his/her criminal record expunged and continues to commit the violation, shall be subject to a fine of from twenty million to two hundred million VND or non-custodial reform for up to two years:
- Appropriation of copyright in literary, artistic, scientific, journalistic works, audio tapes, audio discs, video tapes, video discs;
- Impersonating the author in literary, artistic, scientific, journalistic works, audio tapes, audio discs, video tapes, video discs;
- Illegally modifying the content of literary, artistic, scientific, journalistic works, audio tapes, audio discs, video tapes, video discs;
- Illegally publishing and disseminating literary, artistic, scientific, journalistic works, audio tapes, audio discs, video tapes, and video discs.
Clause 2 of this article provides for aggravating circumstances and Clause 3 of this article provides for additional penalties.
Second , the crime of producing and trading in counterfeit goods (Article 156 of the 1999 Penal Code)
According to the provisions of Clause 1, Article 156 of the 1999 Penal Code, anyone who produces or trades in counterfeit goods equivalent to the quantity of genuine goods with a value of from thirty million VND to less than one hundred and fifty million VND or less than thirty million VND but causes serious consequences or has been administratively sanctioned for the acts specified in this Article or in one of Articles 153, 154, 155, 157, 158, 159 and 161 of this Code or has been convicted of one of these crimes, has not had his/her criminal record expunged and continues to commit the violation, shall be sentenced to imprisonment from six months to five years.
Clauses 2 and 3 of this article provide for aggravating circumstances and Clause 4 of this article provides for additional penalties.
According to the instructions at Point 1, Section III of Joint Circular No. 10/2000/TTLT-BTM-BTC-BCA-BKHCNMT dated April 27, 2000 of the Ministry of Trade, Ministry of Finance, Ministry of Public Security, Ministry of Science, Technology and Environment "guiding the implementation of Directive No. 31/1999/CT-TTg dated October 27, 1999 of the Prime Minister on the fight against the production and trade of counterfeit goods", counterfeit goods are understood as follows:
- Counterfeit goods of poor quality or function are: counterfeit goods that have no use value or a use value that is not consistent with their natural nature, name and use; goods with added impurities or additives that are not permitted to be used, changing the quality; having no or little pharmaceutical ingredients, containing pharmaceutical ingredients different from the pharmaceutical ingredients listed on the label or packaging; having no or insufficient active ingredients, or effective ingredients that are not sufficient to cause the effect; having active ingredients, effective ingredients different from the names of active ingredients, effective ingredients listed on the packaging; goods that do not have enough ingredients or have been replaced by other ingredients, spare parts that do not ensure quality compared to quality standards.
Goods that have been declared to have adverse consequences on production, human health, animals, plants or the environment; goods on the list of mandatory standards that are not applied but have adverse consequences on production, human health, animals, plants or the environment; goods that have not been certified to conform to standards but use a certificate or mark of conformity to standards (for the list of mandatory goods).
- Counterfeit trademarks, industrial designs, origin and provenance of goods are: goods with trademarks that are identical or confusingly similar to trademarks of others that are protected for the same type of goods, including trademarks that are protected under international treaties to which Vietnam is a party, without the permission of the trademark owner; goods with signs or packaging bearing signs that are identical or confusingly similar to protected trade names or to protected names of origin of goods; goods or parts of goods with external appearance identical to protected industrial designs without the permission of the industrial design owner; goods with signs of counterfeit indications of origin and provenance of goods that cause misunderstanding about the origin, place of production, place of packaging and assembly of goods.
- Counterfeit product labels are: products with identical or similar labels to those of other establishments; indicators on product labels that are inconsistent with product quality in order to deceive consumers; content on labels that are scratched, erased, modified, or have incorrect expiration dates in order to deceive customers.
Third , the crime of producing and trading in counterfeit food, medicine, and disease prevention drugs (Article 157 of the 1999 Penal Code).
According to Clause 1, Article 157 of the 1999 Penal Code, anyone who produces or trades in counterfeit food, foodstuffs, medicines, or disease prevention drugs shall be sentenced to imprisonment from two to seven years. Clauses 2, 3, and 4 of this article stipulate aggravating circumstances, and Clause 5 of this article stipulates additional penalties.
Fourth , the crime of producing and trading in counterfeit goods such as animal feed, fertilizers, veterinary medicines, pesticides, plant varieties and livestock (Article 158 of the 2015 Penal Code).
1999).
According to the provisions of Clause 1, Article 158 of the 1999 Penal Code, anyone who produces,
Trading in counterfeit goods such as animal feed, fertilizers, veterinary drugs, pesticides, plant varieties, and livestock in large quantities or causing serious consequences or having been administratively sanctioned for the acts specified in this Article or in one of Articles 153, 154, 155, 156, 157, 159 and 161 of this Code or having been convicted of one of these crimes and not yet had his criminal record expunged but still committing the violation, shall be subject to a fine of from ten million to one hundred million Dong or imprisonment from one to five years. Clauses 2 and 3 of this Article prescribe aggravating circumstances and Clause 4 of this Article prescribes additional penalties.
Fifth , the crime of violating regulations on granting certificates of protection of industrial property rights (Article 170 of the 1999 Penal Code).
According to the provisions of Clause 1, Article 170 of the 1999 Penal Code, any person who has the authority to grant protection certificates but violates the provisions of the law on granting protection certificates for industrial property rights, has been disciplined or administratively sanctioned for this act and still violates causing serious consequences, shall be subject to non-custodial reform for up to three years or imprisonment from six months to three years. Clause 2 of this Article stipulates aggravating circumstances and Clause 3 of this Article stipulates additional penalties.
Sixth , crime of infringing upon intellectual property rights (Article 171 of the 1999 Penal Code).
According to the provisions of Clause 1, Article 171 of the 1999 Penal Code, anyone who, for business purposes, illegally appropriates or uses patents, utility solutions, industrial designs, trademarks, names, origins of goods or other IP objects currently protected in Vietnam, causing serious consequences or has been administratively sanctioned for this act or has been convicted of this crime, has not had his/her criminal record expunged and continues to violate, shall be subject to a fine of from twenty million to two hundred million VND or non-custodial reform for up to two years. Clause 2 of this article stipulates aggravating circumstances and Clause 3 of this article stipulates additional penalties.
Seventh , the crime of violating regulations on publishing and distributing books, newspapers, audio discs, audio tapes, video discs, video tapes or other publications (Article 271 of the 2015 Penal Code).