Therefore, the research on the topic: "Preventing the current situation of crimes of IP right infringement in Vietnam" with a view to providing measures to strengthen the prevention of
Trang 1VIETNAM ACADEMY OF SOCIAL SCIENCES
ACADEMY OF SOCIAL SCIENCES
NGUYEN VAN TUNG
PREVENT THE CURRENT SITUATION OF CRIMES
OF INTELLECTUAL PROPERTY RIGHT
Trang 2The research project was completed at:
ACADEMY OF SOCIAL SCIENCES
Scientific instructor: Associate Professor
Dr TRAN HUU TRANG
Reviewer 1: Associate Professor Trương Quang Vinh
Reviewer 2: Associate Professor Mai Dac Bien
Reviewer 3: Associate Professor Tran Dinh Nha
The thesis will be defended before the Academy-level Thesis Evaluation Council at: the Academy of Social Sciences
At…… hour, date…….month…….year 2023
The thesis can be referenced at:
- The National Library
- The Library of Vietnam Academy of Social Sciences
Trang 3PREAMBLE
1 The imperative of the thesis topic
Intellectual property (IP) rights are the ownership of organizations and individuals to intellectual property, including copyright, copyright related rights, industrial property rights and rights to plant varieties In the context of economic integration and global competition, IP rights protection has become an issue of critical importance and top concern in international economic relations The protection of IP rights is a strategic measure that will ultimately promote economic growth and development Our Party and State always pay attention to the field of
IP rights protection and thereby have issued many resolutions and legal documents on IP right protection to improve the work quality and efficiency of agencies exercising judicial power, meeting the requirements of IP rights protection
However, there remain limitations and shortcomings in the theoretical perception and the practice of IP right protection and the law on IP rights, which have adversely impacted the effectiveness of prevention of IP right-infringing crimes In recent times, the situation of IP right-infringing crimes tends to increase, becoming complicated with many sophisticated tricks and very serious damages; hidden crimes accounts for a large proportion; the legal framework on protection
of IP rights still has many shortcomings, lacks specificity and does not meet the practical requirements of handling these crimes In addition, many international treaties that Vietnam has signed and ratified or international economic relations require the continued improvement of legal policies and effective implementation of the work of preventing and controlling IP right-infringing crimes
Therefore, the research on the topic: "Preventing the current situation of
crimes of IP right infringement in Vietnam" with a view to providing measures to
strengthen the prevention of IP right-infringing crimes are urgent and meaningful, theoretically and practically
2 Research purposes and tasks
2.1 Research purposes
By clarifying theoretical and practical issues on preventing IP right-infringing crimes, the thesis aims to propose solutions to strengthen the prevention of IP right-infringing crimes in Vietnam
2.2 Research tasks
Trang 4- Review the research situation related to the topic in Vietnam and abroad, based on which to identify the body of knowledge that the thesis can inherit and clarify issues that need to be further researched in the thesis
- Research, analyze, and clarify theoretical issues about preventing IP infringing crimes such as concepts, characteristics and purposes of preventing IP right-infringing crimes, grounds, principles and contents of measures and actors in preventing the situation of IP right- infringing crimes
right Analyze and clarify the practice of preventing the situation of IP rightright infringing crimes and analyze and clarify the causes and conditions of the situation of IP right- infringing crimes in the period from 2012 to 2022
- Provide a forecast of the situation of IP right-infringing crimes, factors affecting prevention activities and propose measures to strengthen the prevention
of IP right-infringing crimes in the coming time
3 Research subjects and scope of the thesis
3.1 Research subjects
The research subjects of the thesis are theoretical issues of preventing IP infringing crimes; current status of prevention of IP right-infringing crimes and measures to enhance the prevention of IP right-infringing crimes in Vietnam
right-3.2 Research scope
Regarding contents: The thesis researches theoretical and practical issues of preventing the situation of IP right-infringing crimes from the perspective of criminology in the field of criminology and crime prevention
Regarding time: The thesis uses data and cases of IP right infringement within 11 years, from 2012 to 2022
Regarding geographical coverage: The thesis conducts research on a national scale
4 Research methodology and methods
4.1 Methodology
The thesis is researched on the basis of the materialist dialectical methodology
of Marxism-Leninism, Ho Chi Minh's ideology, views, guidelines and policies of the Party and State on national reform, the spirit of continuing to build and strengthen the socialist rule-of-law State, including the content of continuing to promote judicial reform in preventing and fighting crimes in general, including IP right-infringing crimes The thesis uses a multidisciplinary approach: Jurisprudence combined with politics, education, ethics, psychology, etc to explain issues related to the prevention
of IP right-infringing crimes
Trang 54.2 Research methods
Throughout the process of completing the thesis, the author used the following research methods: statistics, experience summary, analysis, synthesis, commentary, induction, deduction, logical reasoning, literature review, expert consultation, case study, judgment research and focus group exchanges and discussion
5 New scientific contributions of the thesis
The thesis has the following new scientific contributions:
First, the thesis contributes to supplementing and strengthening theoretical
issues on preventing IP right-infringing crimes
Second, the thesis analyzes and clarifies the current situation of preventing IP
right-infringing crimes and evaluates the results of preventing IP right-infringing crimes, analyzing and clarifying the limitations and weaknesses in the prevention of the situation of IP right – infringing crimes and the causes of those limitations and weaknesses
Third, the thesis analyzes and clarifies the current situation of IP right-
infringing crimes and the causes and conditions of the situation of IP right-infringing crimes
Fourth, the thesis forecasts the situation and factors affecting the prevention of
IP right-infringing crimes in the coming time
Fifth, the thesis proposes measures to strengthen the prevention of IP
right-infringing crimes
6 Theoretical and practical significance of the thesis
- Theoretical significance: The thesis is a complete research work on the
theory of preventing IP right-infringing crimes The new points of the thesis will not only contribute to improving the theory of preventing the situation of crimes infringing on IP rights, but also contribute to improving the theory of preventing the situation of other crimes and crimes in general
- Practical significance : The research results of the thesis can be used and
referenced in the prevention of the situation of IP right-infringing crimes in Vietnam in the current period and in the coming time The thesis is also a reference document for interested researchers, lecturers, students and officials working in agencies specializing in crime prevention and control
7 Structure of the thesis: In addition to the introduction, conclusion, appendices
and list of references, the content of the thesis is structured into 4 chapters:
Chapter 1: Overview of research situation
Trang 6Chapter 2: Theoretical issues on preventing IP right-infringing crimes in
Up to now, many scientists have conducted multiple research projects on or related to IP right-infringing crimes from different perspectives: law, sociology, policy studies and criminology, etc
These projects have researched, discussed and explained issues such as improving the law on preventing IP right-infringing crimes; clarifying the current situation of IP right-infringing crimes, proposing a number of measures to prevent the situation of IP right-infringing crimes
All the above research projects agree on the concepts and criminal signs of
IP right-infringing crimes; the concept of crime situation, the concept of crime prevention and determining the actors of prevention activities These researches share the same view on crime prevention, including: measures to eliminate the causes of crime such as communication, education measures, socio-economic measures, cultural – ideological measures, organizational and management measures, crime fighting measures, law improvement measures and measures to prevent the risk of becoming crime victims
1.2 Some issues that have not been researched or researched in depth
First, there have been no in-depth studies on the criminological characteristics
of IP right-infringing crimes in Vietnam, in the period from 2012 to 2022
Second, although there have been a few scientific works researching the
situation, causes and conditions of IP right-infringing crimes, there have been no comprehensive studies on a nationwide scale in the period 2012-2022
Third, while many textbooks, monographs, translated documents, theses,
dissertations and scientific articles in Vietnam and abroad have covered forecasts and prevention measures of IP right-infringing crimes, so far there has been no complete and comprehensive research on these contents on national scale in the period 2012-2022 due to different research approaches, time and locations
Trang 71.3 Issues that need further research
- Conducting an overview of domestic and foreign research related to the prevention of IP right-infringing crimes to clarify achieved results and issues that have not been researched or have not been discussed, based on which to determine research directions and research contents of the thesis
- Clarifying theoretical issues on IP right-infringing crime prevention This is
a necessary theoretical foundation to clarify the current situation of preventing IP right-infringing crimes in the period 2012-2022
- Evaluating IP right-infringing crime prevention in Vietnam, analyzing and clarifying achieved results, limitations, weaknesses and causes of limitations and weaknesses in the practice of preventing IP right-infringing crime situation in Vietnam
- Researching and clarifying the situation, causes and conditions of IP infringing crimes in our country from 2012 to 2022 This situation is the result of prevention activities of IP right-infringing crime situation in Vietnam from 2012 to 2022
- Forecasting the situation and factors affecting the situation of IP right-infringing crimes in Vietnam as a basis for introducing measures to strengthen the prevention of IP right-infringing crimes
right Researching and proposing a collection of measures to enhance the prevention of IP right-infringing crimes
1 4 Research questions and research hypotheses
Trang 8- Up to now, there has been no research works which clarify the current situation, structure and evolution of the situation of IP right-infringing crimes, causes and conditions of the situation of IP right-infringing crimes in Vietnam in the period of 2012 - 2022
- The practice of preventing IP right-infringing crimes in Vietnam in the period 2012 – 2022, despite many achievements, still have many challenges, limitations, obstacles and inadequacies
- There have not been effective measures to effectively prevent IP infringing crimes in Vietnam in the coming period
right-Chapter 2 THEORETICAL ISSUES ON PREVENTING IP RIGHT-
INFRINGING CRIMES IN VIETNAM 2.1 Concepts, characteristics and purposes of preventing IP right- infringing crimes
2.1.1 Concept of preventing IP right-infringing crimes
Preventing IP right-infringing crimes is an activity of State agencies, social organizations and all individuals under the leadership of the Party through the integrated and synchronous adoption of many different measures with a view to eliminating the causes and conditions of the situation of IP right-infringing crimes
to prevent, reduce and repel toward eliminating IP right-infringing crimes from social life
2.1 2 Characteristics of IP right-infringing crime prevention
Activities to prevent IP right-infringing crimes must be associated with raising awareness of IP owners in protecting their rights and awareness of all the people; addressing limitations and shortcomings in the management of enterprises with production and business activities; communicating and enhancing moral values and respect for others’ property; implementing measures to improve the material and spiritual life of the people; strengthening the responsibility in managing and handling IP rights violations of State administrative agencies; and enhancing the effectiveness of activities to fight against IP right-infringing crimes
2.1.3 Purposes of IP right-infringing crime prevention
First, reduce and eliminate the causes and conditions of the situation of IP
right-infringing crimes, and prevent the situation of IP right-infringing crimes
from arising and growing
Trang 9Second, apply measures to promptly prevent IP right-infringing crimes from
occurring, properly handle offenders and prevent new crimes
Third, maximally protect IP rights, on such basis to maximally protecting
fundamental human rights
2.2 Subject, contents and principles of preventing IP right-infringing crimes 2.2.1 Subject of IP right-infringing crime prevention
The subject of IP right-infringing crime prevention is the situation of IP
right-infringing crimes
2 2.2 Contents of IP right-infringing crime prevention
Contents of IP right-infringing crime prevention include the synchronous implementation of preventive measures aimed at addressing and reducing the causes and conditions of IP right-infringing crimes; rapid criminal case initiation, investigation, prosecution, adjudication and judgement execution to improve effectiveness in combating IP right-infringing crimes; and settlement of limitations of preventive measures and implementation of measures to prevent IP
right-infringing crimes
2.2.3 Principles of IP right-infringing crime prevention
Preventing IP right-infringing crimes requires compliance with the following principles: the principle of ensuring absolute, direct and comprehensive leadership of the Party; socialist legal principle; democratic principle; humanitarian principle; scientific and progressive principle; the principle of ensuring close coordination among actors engaging in the prevention of IP right
infringing crimes
In addition to complying with general principles of crime prevention, due to the specific nature of the situation of IP right-infringing crimes, activities to prevent the situation of IP right-infringing crimes need to comply with two additional specific principles, namely: the principle of protecting human rights and citizens' rights; and the principle of prevention by locations, by types of crime
perpetrators and by characteristics of victims
2.3 Bases for preventing IP right-infringing crimes
Prevention of IP right-infringing crimes essentially includes activities that address the causes and conditions giving rise to crimes to prevent crimes from occurring and promptly detect and handle them To that end, prevention of IP right-infringing crimes must be carried out on certain bases, which are: political basis, legal basis, theoretical basis and practical basis
Trang 102.4 Actors and measures to prevent IP right-infringing crimes
- Actors for preventing IP right-infringing crimes include: the Party who provide overall leadership over activities to prevent IP right-infringing crimes; the National Assembly who promulgates laws to create a legal basis for preventing crimes in general and IP right-infringing crimes in particular; the Government, ministries, sectors and law protection agencies (police forces, people's procuracies, people's courts); socio -political organizations, social organizations, mass organizations and the people
- Based on the theory of criminology and the practice of preventing IP
right-infringing crimes, measures to prevent the situation of IP right-right-infringing crimes can be categorized into: law improvement measures, communication, legal education and training measures; socio-economic measures; cultural and educational measures; organizational and management measures; crime fighting
measures; and measures to strengthen international cooperation
Chapter 3 PRACTICE OF PREVENTING IP RIGHT-INFRINGING CRIMES
IN VIETNAM 3.1 Practice of organizing forces to prevent IP right-infringing crimes
3.1.1 Results
The organization of forces to prevent IP right-infringing crimes in recent times has achieved many positive results; coordination between functional agencies in detecting, fighting, preventing and handling acts of IP right infringement has been strengthened; and the National Steering Committee against smuggling, trade fraud and counterfeit goods (National Steering Committee 389) has been established, organized and operated With major reforms in the way the National Steering Committee 389 organizes and operates, the fight against smuggling, trade fraud and counterfeit goods has achieved many positive results, contributing to increasing budget revenue, protecting the business environment as well as consumers’ rights, positively contributing to the country's socio-economic
development
Inter-ministerial and sectoral cooperation programs on the enforcement of IP rights (referred to as Program 168) have been developed and implemented All these programs aim to promote information exchange activities, establish a
Trang 11mechanism to provide information on the implementation of IP rights of each ministry/sector, including the building of a shared database and website for joint use by ministries/sectors to publish information of typical cases of IP rights infringement that have been handled or tried, enhance coordination in inspection, examination and handling of violations, promote communication and education work; strengthen training cooperation, improve the capacity of enforcement officers and enhance international cooperation on IP
3.1.2 Limitations
- The current system of agencies competent to handle violations or propose petitions for criminal case initiation of violations in the field of IP includes many focal points while their authority is not specific and clear Some agencies are given the authority to impose administrative sanctions but in reality do not have conditions to organize implementation; some agencies are competent to propose petitions for criminal case initiation but do not actually exercise their power; some agencies cannot determine the responsibility between the additional authority (authority to sanction administrative violations) and the tasks according to regular functions (investigation and verification tasks of police agencies); and some other agencies have not met the requirements so they need to continue to improve themselves in the spirit of Resolution No 27-NQ/TW dated November 9, 2022 of the 6th Congress of the 13th Party Central Committee on continuing to build and strengthen the Vietnamese socialist rule-of-law State in the new period
- IP right-infringing crimes in the current period are committed by many new methods and tricks such as applying high technology, using modern equipment and technology to produce goods that violate IP rights, making it difficult for consumers and market management agencies to distinguish between real/fake products These violations are increasingly dangerous in nature, are well organized not only within the territory of Vietnam but also extended to foreign organizations and individuals while the capacity and professional qualifications
of enforcement agencies in handling acts of IP right infringement are basically inadequate and weak (in terms of physical facilities, techniques, information and staff contingent)
- The coordination between procedure-conducting agencies in criminal handling of IP right-infringing crimes has not yet been close and consistent, especially in collecting and evaluating evidence, leading to case files being returned many times for re-investigation and additional investigation; the
Trang 12hesitance of taking responsibility and the mentality of staying safe have impeded the spirit and will to fight against crimes at times and in some places, resulting in failure to promptly handle crimes, etc
- The perpetrators of these crimes are mostly people having good economic conditions, professional and technical qualifications, high skills, and understanding of the fields in which they are operating and doing business and in some cases, having certain positions and powers Besides, the advances of science and technology and the birth of ChatGPT have created many devices, tools, and means for committing crimes, which are increasingly sophisticated, modern and very difficult to detect Servers used to create fake websites are often located or rented abroad, posing challenges to investigation, prosecution and trial
- The legislation on IP rights protection is a highly specialized and concurrently an internationalized legal field Many countries have established specialized agencies to prevent IP right-infringing crimes, including the establishment of specialized IP courts However, Vietnam has not yet established these agencies to specialize and professionalize the adjudication of IP right-infringing cases
3.2 Practice of implementing communication and legal education measures related to the prevention of IP right-infringing crimes
3.2.1 Results
With the attention and direction of Party committees and authorities at all levels, communication and legal education on the prevention of IP right-infringing crimes have been implemented and achieved some certain results The contingent
of communicators has gradually been built and strengthened, many communication contents have been absorbed into real life, actively contributing
to raising people's awareness in the fight against IP right-infringing crimes
3.2.2 Limitations
The communication, dissemination and education of laws in preventing the situation of IP right-infringing crimes still have limitations such as: not yet being able to build a collection of in-depth communication documents on preventing the situation of IP right-infringing crimes; the practice of communication, dissemination and education of laws also show the absence of effective forms of communication; legal protection work on preventing IP right-infringing crimes has not received adequate attention in some agencies and organizations; although human resources to carry out legal education and training at all levels and sectors
Trang 13have been consolidated, strengthened and fostered with knowledge to improve capacity, they are still spread out and have not met the needs, tasks and requirements of the country in the new situation in the country and lack specialized team equipped with in-depth knowledge on preventing IP right-infringing crimes Facilities and funding for legal education and training work have not been up to the requirements, especially in remote or difficult areas
3.3 Practice of implementing economic measures related to the prevention of IP right-infringing crimes
3.3.1 Results
Recognizing socio-economic issues at one of the basic causes to the situation
of IP right-infringing crimes, the government has implemented and applied many measures to promote economic and social development, improve the material life
of each household, create a premise for economic development nationwide, contribute to stabilizing the social and economic situation, and gradually repel the situation of IP right-infringing crimes Issues of Vietnam's economic laws have been specifically stated in the documents of the 13th Party Congress In particular, the Party has pointed out that the main orientation to strengthen the economic legal framework is industrialization and modernization associated with the application of science, technology and innovation
3.3.2 Limitations
Despite the achieved results, our country's economy still faces many limitations, weaknesses, difficulties, challenges and many potential risks Productivity, quality and competitiveness of the economy are not high Strategic breakthroughs have not yet occurred The quality of human resources, especially high-quality human resources, does not meet requirements; science, technology and innovation have not really become the driving force for development The growth model is not yet based on science, technology, and innovation; the autonomy of the economy remains low and highly dependent on the outside world; and due attention has not been paid to the domestic value and supply chain
to improve labor productivity and competitiveness of the economy These limitations are the causes leading to ineffective, uneven, and unsustainable economic development, causing unfair competition in production and business, particularly the infringement of IP rights to gain illegal profits
Business ethics, especially honesty, integrity and responsibility in production, business and to the society and respect for human rights, respect for the constitution