Joint Circular No. 06/2008/TTLT-BKHCN-BTC-BNV guiding the implementation of the Government's Decree No. 80/ 2007/ND-CP dated May 19,2007, on science and technology enterprises

NO. 06/2008/TTLT-BKHCN-BTC-BNV OF JUNE 18, 2008, GUIDING THE IMPLEMENTATION OF THE GOVERNMENT'S DECREE NO. 80/ 2007/ND-CP OF MAY 19,2007, ON SCIENCE AND TECHNOLOGY ENTERPRISES

Pursuant to the Government's Decree No. 28/ 2008/ND-CP of March 14, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Science and Technology;

Pursuant to the Government's Decree No. 77/ 2003/ND-CP of July 1, 2003, defining the functions, tasks, powers and organizational structure, of the Ministry of Finance;

Pursuant to the Government's Decree No. 48/ 2008/ND-CP of April 17, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Home Affairs;

Pursuant to the Government's Decree No. 80/ 2007/ND-CP of May 19, 2007, on science and technology enterprises (below referred to as Decree No. 80/2007/ND-CP);

The Ministry of Science and Technology, the Ministry of Finance and the Ministry- of Home

Affairs jointly guide a number of articles of Decree No. 80/2007/ND-CP as follows:

I. GENERAL PROVISIONS

1 Subjects of application

1.1. Vietnamese and foreign organizations and individuals that have the lawful right to own or use scientific research and technological development results (scientific and technological results) and satisfy the conditions on establishment of new science and technology enterprises specified in this Joint Circular.

1.2. Science and technology organizations established by competent state agencies (below referred to as public science and technology organizations), which have the lawful right to own or use scientific and technological results and satisfy the conditions on organizational and operational transformation of public science and technology organizations into science and technology enterprises under this Joint Circular.

2. Agencies competent to approve transformation schemes

Agencies competent to approve schemes on organizational and operational transformation of public science and technology organizations into science and technology enterprises (below referred to as transformation schemes) are state agencies competent to establish these science and technology organizations. For science and technology organizations established under decisions of the Government or the Prime

Minister, ministries, ministerial-level agencies, government-attached agencies and state corporations assigned to manage these organizations are competent to approve transformation schemes.

3. Managing agencies of science and technology organizations

Managing agencies of science and technology organizations are immediate superior agencies or units of these organizations and are empowered to administratively and professionally manage

4. Scientific and technological results

4.1. Scientific and technological results include:

a/ Outcomes of scientific and technological programs, subjects, schemes and projects; outcomes of projects on research for decoding and mastery of technologies (below referred to as scientific and technological tasks), which are recognized by competent state management agencies under law;

b/ Inventions, industrial designs, plant varieties and layout designs of semiconductor integrated circuits which have been granted protection titles under the intellectual property law or have their international registrations recognized under treaties to which Vietnam is a contracting party; computer programs.

4.2. The lawful right to own or use scientific and technological results

a/ For scientific and technological results of state budget origin:

- Scientific and technological results of researches wholly funded by the state budget will come under the state ownership:

- For scientific and technological results of researches partially funded by the state budget, the State will own the value of part of such scientific and technological results corresponding to the proportion of state budget funds provided for these researches;

- For scientific and technological results, the transfer of which is wholly or partially funded by the state budget, the lawful right to own or use such results will be stated in contracts between involved parties under law. In case the State partially funds the acquisition of transferred scientific and technological results, the State will represent the lawful right to own or use such results corresponding to the proportion of state budget funds provided for the acquisition of such results;

- The right to own or use state-owned scientific and technological results shall be assigned under the provisions of Point 4.4, Clause 4, Section I of this Joint Circular.

b/ For scientific and technological results of non-state budget origin:

- Scientific and technological results of researches conducted by organizations and individuals with their own funds will be owned by these organizations and individuals;

- For scientific and technological results of researches conducted by organizations and individuals but funded by other organizations and individuals or lawfully transferred from other parties, the lawful right to own or use these results will be determined on the basis of documents or contracts between parties under law.

4.3. Valuation of scientific and technological results

a/ Scientific and technological results under the state ownership shall be valuated by state management agencies competent to transfer them at least equal to the level of investment from the state budget:

b/ Scientific and technological results not under the state ownership shall be valuated by owning organizations and individuals themselves. When these results are used in production and business, owning organizations and individuals shall decide on their value after reaching agreement with co-founders of science and technology enterprises.

4.4. Transfer of scientific and technological results tinder the state ownership

a/ The transfer of scientific and technological results to public science and technology organizations (or their sections) undergoing transformation into science and technology enterprises shall be effected by either of the following modes as chosen by these science and technology organizations (or their sections): Transfer of the right to own or transfer of the right to use. In case of transfer of the right to use scientific and technological results, competent state agencies may transfer to one or more than one public science and technology organization the right to use the same scientific and technological result. A scientific and technological result shall be transferred first of all to the science and technology organization that has assumed the prime responsibility for conducting researches to create such scientific and technological result;

b/ A public science and technology organization (or its section) that acquires a scientific and technological result for transformation into a science and technology enterprise shall pay lump-sum copyright royalty in the form of a capital contribution of the scientific and technological results author to the science and technology enterprise. Co-authors of a scientific and technological result shall agree upon each co-author's copyright ownership rate and report such in writing to the public science and technology organization (or its division);

The value of copyright of individuals or collectives authoring scientific and technological results shall be determined as follows:

- For inventions, industrial designs and layout designs of semiconductor integrated circuits already granted protection titles, authors enjoy remunerations under Article 135 of the Intellectual Property Law;

- For science and technology results other than above objects, authors (individuals or collectives) enjoy total remuneration equal to 20-35 % of the value of these results;

The annual payment of profits to individuals or collectives authoring scientific and technological results and having made capital contributions in the form of the copyright value to science and technology enterprises shall be made by these enterprises under law.

c/ Upon applying scientific and technological results transferred by the State to their production or business, science and technology enterprises shall:

- Remit into the state budget 5% of their annual pre-tax profits until their total remittances are equal to 30% of the value of transferred scientific and technological results, in case they have been established from science and technology organizations:

- Remit into non-business operation development funds of science and technology organizations 5% of their annual pre-tax profits until their total remittances are equal to 30% of the value of transferred scientific and technological results, in case they have been established from divisions of science and technology organizations.

The remittance into the state budget or non-business operation development funds of science and technology organizations specified at this Point shall be made as soon as science and technology enterprises generate taxable incomes.

4.5. Competence to decide on the value of scientific and technological results and transfer the right to use or own scientific and technological results under the state ownership:

a/ The Science and Technology Minister is competent to decide on the value of scientific and technological results of the performance of state-level scientific and technological tasks and transfer them to using or owning organizations;

b/ Ministers, heads of ministerial-level agencies, heads of government-attached agencies and presidents of provincial/municipal People's Committees are competent to decide on the value of scientific and technological results of the performance of ministerial-level scientific and technological tasks and transfer them to using or owning organizations;

c/ For grassroots-level scientific and technological programs, schemes and projects, heads of agencies competent to assign scientific and technological tasks are competent decide on the value of scientific and technological results and transfer the right to use or own these results.

4.6. Some principal contents of a decision on transfer of a scientific and technological result under the state ownership:

a/ Name of the agency competent to transfer the scientific and technological result;

b/ Title of the scientific and technological result;

c/ Value of the scientific and technological result;

d/ Name of the organization performing the scientific and technological task;

e/ Name(s) of author(s) (address(es), identity card number(s) and bank account number(s));

f/ Name of the organization receiving the scientific and technological result;

g/ Regulations on transfer of scientific and technological results;

- Transfer of the right to own;

- Transfer of the right to use.

h/ Regulations on the responsibility to make remittances into the state budget (or the non-business operation development fund of the science and technology organization in case of separation of a division of the science and technology organization for establishing a science and technology enterprise):

- Remittance level;

- Remittance mode;

- Remittance time.

i/ Regulations on the responsibility toward the author of the scientific and technological results:

- Remuneration level:

- Mode of remuneration payment, ownership proportion of each co-author.

- Payment time.

5. Conditions for an enterprise to be accredited as a science and technology enterprise

An enterprise is accredited as a science and technology enterprise when satisfying the following conditions:

5.1 Its founders have completely nursed and mastered the technology created from a scientific and technological result, which is lawfully owned or used in the following domains: information and communication technologies, especially computer software technology; bio-technologies, especially those in service of agriculture, aquaculture and healthcare, automation technology; new material technology, especially nano-technology; environmental protection technology: new energy technology; aerospace technology and some other technologies specified by the Ministry of Science and Technology.

5.2 It transfers the technology or directly conducts production based on the technology it has nursed and mastered under Point 5.1, Clause 5, Section I above.

II. ESTABLISHMENT OF SCIENCE AND TECHNOLOGY ENTERPRISES

1. Establishment of new science and technology enterprises

1.1. Order of establishing new science and technology enterprises

The entities specified at Point 1.1, Clause 1, Section I of this Joint Circular shall establish a science and technology enterprise in the following order:

a/ Establishing an enterprise and making business registration under the Law on

Enterprises:

b/ Registering for certification of the enterprise with the provincial/municipal Science and Technology Service of the locality where the enterprise is to be located within 30 working days after the enterprise establishment.

1.2. A dossier of registration for certification of a science and technology enterprise comprises:

a/Application for certification of a science and technology enterprise (made according to a set form, not printed herein):

b/ Business registration certificate (a notarized copy);

c/ Production and business projects.

1.3. Contents of a production and business project cover:

a/ Evidencing of the lawful use or ownership of scientific and technological results (accompanied with written certifications of the lawful right to use or own scientific and technological results);

b/ Explanation of the process of nursing and mastering the technology created from scientific and technological results which the enterprise has the lawful right to use or own;

c/ Production and/or business plan, clearly stating products to be turned out from scientific and technological results and conditions for production or business preparations.

2. Transformation of public science and technology organizations into science and technology enterprises

A public science and technology organization may be partially or wholly transformed into a science and technology enterprise.

2.1. The order of transforming a public science and technology organization into a science and technology enterprise (below referred to as transformation into a science and technology enterprise) is as follows:

a/ The agency competent to approve the transformation scheme shall set up a transformation steering committee and a team to assist the steering committee in the transformation into a science and technology enterprise. The steering committee and its assisting team have tasks-similar to those of an equitization steering committee and its assisting team as specified in Government Decree No. 109/2007/ND-CP of June 26, 2007, on transformation of enterprises with 100% state capital into joint-stock companies, and documents guiding the implementation of Decree No. 109/2007/ND-CP;

b/ The public science and technology organization shall elaborate and submit a transformation scheme to an agency competent to approve it (principal contents of a transformation scheme are specified in an appendix to this Joint Circular, not printed herein);

Click Download to see full text

JOINT CIRCULAR