Các tội phạm về hàng giả theo pháp luật hình sự việt nam tt tiếng anh

VIETNAM SOCIAL SCIENTIFIC INSTITUTE
ACADEMY OF SOCIAL SCIENCES

PHAM TAI TUE

CRIMES RELATED TO COUNTERFEIT GOODS
UNDER VIETNAMESE CRIMINAL LAW

Major: Criminal law and criminal proceedings
Code: 9 38 01 04

ABSTRACT OF JURIS DOCTOR’S THESIS

Hanoi - 2019


The project is completed at:
ACADEMY OF SOCIAL SCIENCES
VIETNAM SOCIAL SCIENTIFIC INSTITUTE

Scientific Instructors:
Assoc. Prof. Dr. Truong Quang Vinh
Dr. Le Dang Doanh

Counter - argument 1: Assoc. Prof. Dr. Tran Dinh Nha
Counter - argument 2: Assoc. Prof. Dr. Tran Huu Trang
Counter - argument 3: Assoc. Prof. Dr. Pham Van Loi

The thesis will be upholded in front of the
Examination Council of Academy level at:
at………..hour…………minute,

date………month……….year……

The thesis can be available at:
- National Library of Vietnam
- Library of Academy of Social Sciences


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OPENING
1. The urgency of the subject
The act of producing and trading counterfeit goods is one of the
economic crimes that has caused great harm on many economic and social
aspects of the country. Currently, counterfeit goods in Vietnam appear
almost in all areas and include many types of goods, from high-end,
expensive items such as gold and silver; luxury goods such as perfume,
cosmetics, foreign alcohol or even specialized goods such as western
medicines, pesticides, fertilizers, livestock ... Counterfeit goods are
available from imported goods like electronics, industrial goods, to
domestic production items such as footwear and construction materials.
The study of the current provisions of law associated with the
practical analysis of preventing crimes on the production and trading of
counterfeit goods in order to provide appropriate recommendations is a
necessary requirement. The systematic study, resolving new theoretical
issues, analyzing and assessing the provisions of the Criminal Code on
crimes of counterfeit goods thereby giving solutions to solve the problems
of practical application of laws in the criminal justice field, from the
author's point of view, is timely and opportune. Unfortunately, for many
years since the amendment of the Criminal Code in 2009, no doctoral thesis
has researched on this issue.

Successful research on these issues has important implications not
only for practice but also for theory within the current period. Therefore,
the author has chosen the topic “Crime of counterfeit goods under
Vietnam's criminal law” as the thesis topic.
2. Purpose and duty
2.1. Purpose of the project
The research purpose of the thesis is to study in a systematic and
comprehensive way for counterfeiting crimes according to Vietnam's


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criminal law. Besides, the thesis desires to contribute to improving
theoretical issues for criminals about counterfeit goods.
2.2. Duty of the project
To achieve the research purpose, the thesis is focus on solving these
following tasks:
- In terms of theory:
+ Studying different theoretical points on the offense of producing
and trading counterfeit goods according to the provisions of criminal law
and the institutionalization of this crime in the Criminal Code 2015
(amended and supplemented in 2017).
+ Clarifying the scientific content of the determination of the crime
as well as the Criminalty frame for producing and trading of counterfeit
goods; objective, subjective aspects of this crime. Analyzing the practice of
determining criminal charges and deciding Criminalties for the production
and trading of counterfeit goods, thereby providing assessments and
comments on the rationality of the provisions on this crime in the Criminal
Code.
+ Analyzing and comparing the development of domestic criminal

laws with foreign ones in terms of counterfeiting crimes to find out the
development direction as well as determine the reasonable and scientific
contents that need to be acquired in the construction of our country’s
criminal law.
In terms of practice:
+ Generally assessing the situation of the offense of producing and
trading counterfeit goods within 10 years (from 2007 to 2017), thereby
specifying the issues of determining crime, deciding Criminalties for crime
of producing and trading counterfeit goods. The outcome of this practical
study is the basis to consider and evaluate the effectiveness of the criminal
policy of the Government for this crime.


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+ Clarifying problems in the application of criminal law provisions
on determining criminal offense and deciding Criminalties for the crime
producing and trading counterfeit goods.
+ Providing recommendations and solutions to enhance the
effectiveness of Criminalties applied to the crime of producing, trading
counterfeit goods based on the practical evaluation of the crime
determination and deciding Criminalties for this crime.
3. Scope and object
3.1. Scope of the study
- Research majors: The thesis is studied, analyzed and evaluated in
terms of criminal law and criminal procedure law.
- Research time: from 2007 to 2017.
- Research area: all over Vietnam.
3.2. Object of the study
- The thesis studies crimes related to counterfeit goods according to

Vietnam's criminal law.
- From a theoretical perspective: the thesis studies issues such as the
concept of criminals related to counterfeit goods, constitution of criminals
(objective aspect, subject, subjective aspect) of crimes related to counterfeit
goods; scientific perspectives, Vietnam's criminal law provisions as well as
provisions in criminal law in some countries around the world for
counterfeit crimes.
- From a practical perspective: the thesis analyzes the practice of
applying the provisions of the Criminal Code in determining crimes,
deciding Criminalties in trial for crimes related to counterfeit goods from
the provinces and cities in Vietnam. The thesis decides to research and
analyze about 100 judgments to clarify the inadequacies of criminal law,
limitations in practice and the causes of such limitations ... in order to
provide necessary scientific recommendations.
4. Methodology and research method


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The thesis applies Marxism-Leninism, Ho Chi Minh Ideology, views
our Party and Government related to crimes and Criminalties and the
prevention of crimes as the research methodology.
The thesis also applies other research methods such as: synthesizing,
statistics, analyzing, comparing, making tables, ... to complete each part of
the thesis.
5. New scientific contributions of the thesis
The thesis will contribute to ensuring the understanding and proper
application of the provisions of law on the group of criminals related to
counterfeit goods as well as to improving the criminal legal system for
crimes related to counterfeit goods, thereby effectively preventing and

handling counterfeit goods production and trading which are increasingly
destroying the economies of the countries around the world including
Vietnam.
6. The scientific and practical significancies of the thesis
- The thesis focuses on clarifying the theoretical issues of
counterfeiting crimes, systematizing criminal law provisions for this type of
crime, providing judgments about the rationality or irrationality of legal
provisions based on the analysis of actual judgments. The thesis can be used
as a document for teaching, learning and scientific research in the field of
criminal law and related fields.
- The thesis can become a reference for legislative agencies and
social organizations to contribute ideas as well as continue to amend and
supplement the provisions in the Vietnam’s Criminal Code.
- Research results of the thesis can be used to unify the
understandings of the provisions of the law on crimes related to counterfeit
goods, contributing to overcoming the limitations and obstacles in practical
application of law, thereby improving the effectiveness of the fight against
and preventing crimes in general, and crimes related to counterfeit goods in
particular.


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7. Structure of the thesis
In addition to the introduction and conclusion, the references, the
thesis is structured with 4 chapters:
Chapter 1: Overview of research situation
Chapter 2: Theoretical issues for criminals related to counterfeit
goods.
Chapter 3: Vietnam's criminal law and criminal law in some

countries around the world for counterfeit crimes.
Chapter 4: Practical application and measures to ensure proper
application of the provisions of criminal law for crimes related to
counterfeit goods.
CHAPTER 1
GENERAL RESEARCH SITUATION
There have been many research projects concerning crimes related to
counterfeit goods so far.
1.1. Domestic research situation
There are research projects on general theoretical issues about crimes
related to counterfeit goods, namely: the works to which the author referred
are the textbooks on criminal law, scientific commentaries on the Criminal
Code, the dissertations and articles published in jurisprudence journals.
These projects’ authors have analyzed and clarified the theoretical issues of
criminal law such as crimes, Criminalties and issues related to crime and
punishment. This is the basis for the author of this thesis to deeply
comprehend the criminal law provisions for crimes related to counterfeit
goods. These works have brought the author of this thesis practical value
and benefits in implementing the topic.
There are research projects on practical application of legal
provisions for crimes related to counterfeit goods, namely: The research
works to which the author referred are the works that help the author to


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construct the overall view on the application of criminal law provisions for
crimes related to counterfeit goods. In addition to analyzing the practical
application of law to criminals in this group, these projects’ authors also
analyze and clarify some of the causes of practical difficulties in application

as a result of some limitations in regulations of laws as well as the
inappropriate professional qualifications of people conducting legal
procedure ...
There are research projects on the solutions to improve the provisions
of the law for crimes related to counterfeit goods, namely: The purpose of
this thesis is to provide solutions ensuring the proper application of the
provisions of law on crimes related to counterfeit goods. Therefore,
scientific research projects that have been published to offer solutions to
improve the provisions of the law on human dignity and honor crimes are
referenced by this thesis author.
In general, the above research projects have clarified many issues
concerning crimes related to counterfeit goods. These would be documents
which help the author of this thesis to supplement novel awareness about
crimes related to counterfeit goods, which contribute to the effective
implementation of the research.
1.2. Foreign research situation
In order to successfully implement the doctoral dissertation topic, in
addition to mastering the situation of domestic research, it is necessary to
firmly grasp the situation of overseas research to compare and contrast
between those studies and at the same time attemp to add theoretical and
practical basis of the issues related to the content of the topic. In the world,
there are also many scientific works on crimes against human dignity and
honor. The research projects that the author of the thesis refer to are works
with contents related to criminal law theory, mechanisms for handling
crimes related to counterfeit goods.


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Thus, it can be affirmed that crimes related counterfeit goods is a

special concern of researchers not only in Vietnam but also all over the
world. By approaching these works, the author could obtain a broader view
of crimes related to counterfeit goods.
1.3. Review of thesis-related research situation
Through the study of international and domestic scientific projects on
crimes related to counterfeit goods as mentioned above, the author of the
thesis found that scientific research projects are published among different
levels. However, there are some divergences between the referenced
research projects. Therefore, the author of this thesis would, on the one
hand, absorb the advantages of the mentioned research projects and, on the
other hand, clarify the issues that have not been studied or have been
mentioned at a level that is either insufficient or excessively general.
Sub-conclusion of chapter 1
The research result of Chapter 1 shows that the study of crimes
related to counterfeit goods under Vietnamese criminal law in a complete
and profound manner with the level of a doctoral thesis at this time is
crucial.
With the number of research projects in the country as well as in the
world on issues related to the thesis topic, although there are still
limitations, the problems have not been solved thoroughly but could be
considered as valuable sources of material for the author to study and
acquire achievements from the works included in the thesis thereby
contribute to the success of the thesis.


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CHAPTER 2
THEORETICAL ISSUES CONCERNING
CRIMES RELATED TO COUNTERFEIT GOODS

Counterfeiting goods directly damage consumers and dislocate genuine
business manufacturers. For domestic production and consumption,
counterfeit goods directly affect the rights and reputation of genuine
businesses that want to develop by way of fair competition. Researching
and clarifying some theoretical and historical issues about crimes related to
counterfeit goods would positively contribute to the fight against and
prevention of crimes in general and crimes related to counterfeit goods in
particular.
2.1. Concept of crimes related to counterfeit goods
2.1.1. Concept of counterfeit goods
Currently there are many different understandings about counterfeit
goods. According to thenLaw Dictionary of the Institute of Legal Sciences
under the Ministry of Justice and the Dictionary of interpretation of legal
terms - Criminal Law, Criminal Procedure Law of Hanoi Law University,
counterfeit goods are defined as follows: “Counterfeit goods are objects that
are either not valid for the use of the goods which they bear the name
(counterfeit content) or valid for the use of the goods bearing the name but
bearing the trademark of another production establishment in order to
deceive customer (counterfeit form)”. Thus, according to these two
dictionaries, counterfeit goods include two types, namely: counterfeit goods
in content and counterfeit goods in form. Counterfeit goods in content are
not valid for the use of goods which they bear the name while counterfeit
goods in form are valid of the use of goods bearing the name but bearing
the trademark of another production establishment in order to deceive
customer. Counterfeit goods which are considered as subjects to production
activities and trafficking in this criminal group are counterfeit goods in
content.


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2.1.2. Concept of crimes related to counterfeit goods
The stipulation of crimes related to counterfeit goods in the Criminal
Code 2015 provides the legal basis for the fight against and preventing
counterfeit goods. The Criminal Law does not give a concept of crimes
related to counterfeit goods, however, based on regulations on criminal
concepts in general, the concept of crimes related to counterfeit goods
would be clarified.
Researching crimes related to counterfeit goods, it can be seen that
they have some generalized characteristics:
First, crimes related to counterfeit goods are dangerous acts for
society.
Second, these crimes are acts that are prescribed in criminal law.
Third, the acts of producing and trading counterfeit goods must be
carried out by either persons with criminal liability capacity and at the
proper ageto bear criminal liability or commercial legal entities.
Fourth, crimes related to counterfeit goods are committed with wilful
misconducts.
Based on the general concept of crime, through the study of the
characteristics of the above-mentioned crimes related to counterfeit goods,
the crimes related to counterfeit goods in this thesis are defined as follows:
“Crimes related to counterfeit goods are dangerous acts for the society
which are prescribed in the Criminal Code, either performed intentionally
by persons at the age of 16 or older who have criminal liability capacity or
performed by commercial entities, violating the Government management
order on production, circulation, distribution and trading of goods; market
management and consumer benefits”.
2.2. The basis for stipulation of crimes related to counterfeit
goods in Vietnamese criminal law
2.2.1. Political basis

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In a classified society, law has always been an effective management
tool, an important and indispensable tool of the Government. Criminal law
is one of the sharpest and most effective tools to regulate certain important
social relations.
When studying the history of criminal laws for crimes related to
counterfeit goods, we can see that the fight against counterfeit goods which
is detrimental to the economy of the country has not begun currently but for
a long time. Based on such urgent political needs, it is necessary to build
tools to protect it, in other words, it is necessary to regulate crimes related
to counterfeit goods.
2.2.2. Socio-economic basis
The law can promote economic development when its regulations are
appropriate and reflecting the exact level of economic development. The
law contributes to promoting the positive side and limiting the reverse of
the market economy against monopoly, anti-dumping, reducing the division
of rich and poor in society, etc. On the contrary, the law can restrain the
economic development when its regulations are higher or lower than the
level of the economy. This is the reason, the socio-economic basis for
regulating crimes related to counterfeit goods in Vietnam's criminal law;
and when it was born, the regulations for crimes related to counterfeit goods
must also be consistent with socio-economic conditions.
2.2.3. Legal basis
The stipulation of a criminal or a criminal group in a certain field
must always be based on the general principles of international law and
national law in that area. Same thing is applied for criminal groups related
to counterfeit goods, the stipulation must comply with the general principles

of international law and Vietnamese law on the issue of economic
management order in general and counterfeit goods in particular. When
developing regulations in national law, it is compulsory to comply with the


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contents and principles of international treaties that Vietnam has signed or
acceded to.
2.3. Criminal policy of our Government for crimes related to
counterfeit goods
First, the Government focuses on criminally handle the acts of
producing and trading counterfeit goods related to consumers' health and
lives.
Second, the Government has a clear distinction between counterfeit
goods in content and counterfeit goods in form; counterfeit goods and
goods infringing industrial property rights; thereby giving different
directions of solutions.
Third, criminal law has a increasingly clearer division of criminal
responsibility for crimes related to counterfeit goods.
Sub-conclusion of chapter 2
In order to understand the criminal law provisions on crimes related
to counterfeit goods, the first thing to identify is the concept of crimes
related to counterfeit goods. The theoretical content of Chapter 2 provides
the basis for analyzing the legal signs of crimes related to counterfeit goods
in Vietnam's criminal law, and at the same time serve as a basis for
evaluating the practical application of criminal law for this criminal group
in practice. This is the content that would continue to be implemented in
Chapter 3 and Chapter 4 of the thesis.

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CHAPTER 3
REGULATIONS OF CRIMINAL LAW
ON CRIMES RELATED TO COUNTERFEIT GOODS
3.1. Regulations of Vietnamese law on crimes related to
counterfeit goods
3.1.1. Overview of the history of development of Vietnam's criminal
law provisions on crimes related to counterfeit goods
Researching Vietnam's criminal law history stipulating crimes related
to counterfeit goods through periods is an important issue to assess the
change and development of Vietnam's criminal law over each period,
thereby forming the basis to further improve the law of these crimes.
The period after the August 1945 Revolution and before the 1985
Criminal Code came into force
After the August 1945 Revolution, the Democratic Republic of
Vietnam was born with many difficulties, challenges, enemies from both
the inside and the outside of the territory. During this period, although the
Government has issued many legal documents in the criminal field to create
a legal basis for fighting against and preventing crimes, protecting young
authorities, however, crimes related to counterfeit goods had not been
mentioned yet.
In 1975, the southern Vietnam was liberated, the country was united.
On March 15, 1976 the Provisional Revolutionary Government promptly
issued the Law No. 03/SL regulating crimes and penalties to stabilize the
market and ensure the Government management toward the economy.
Crime of producing counterfeit goods also provided in Article 6 of this Act
as one of the economic crimes.
In order to overcome the limitations and shortcomings of Decree No.

03-SL/76 and become more suitable to the novel situation of the economy,
on the basis of the Constitution of 1980, Ordinance No. 07-LCT/HDNN
which was issued on July 10, 1982 stipulating the punishment for crimes of


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speculating, smuggling, counterfeiting and illegal trading is considered to
be the first legal document specifically stipulating the crime of producing or
trading counterfeit goods before the Criminal Code of 1985 was born. In
fact, when applying the law to handle an act of making or trading
counterfeit goods, the authorities must base on both the above documents to
determine whether to bring into account the criminal liability or only apply
administrative measures. The application of law in handling acts of
producing and trading counterfeit goods has certain difficulties and
obstacles.
The period after the Criminal Code of 1985 came into force and
before the Criminal Code of 1999 came into force
The Criminal Code of 1985 was passed by the 7th National
Assembly on June 27, 1985 at the 9th session and came into force from
January 1, 1986. This is the first Criminal Code of our country to be issued
on the basis of legalizing the previous issued criminal legal documents,
thereby marked a remarkable step in the criminal legislative history of our
Government. In the Criminal Code of 1985, crimes related to counterfeit
goods are prescribed as a single crime with one provision for all fields.
The Criminal Code of 1985 over a period of time had revealed
inadequate, outdated limitations and was no longer suitable for the new
situation. Market mechanisms, acts of producing and trading counterfeit
goods have many changes in methods, tricks and categories ... regulations
on offenses of counterfeiting and trading counterfeit goods are stipulated in

Article 167 was no longer suitable for the crime related to counterfeit
goods. The development of a new law, in which there are provisions on
offenses of counterfeiting and trading goods, which are completed in
accordance with the new situation, is essential.
The period after the Criminal Code 1999 came into force and
before the 2015 Criminal Code came into force


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On November 22, 1999, the 10th National Assembly passed the
Criminal Code of 1999 and also passed Resolution No. 32/1999/QH-10 on
the implementation of the Criminal Code. This law inherited and promoted
the provisions of the Criminal Code of 1985 on the basis of acquiring
lessons from the reality of fighting against and preventing crimes in general
and offenses of producing and trading counterfeit goods in particular.
Crimes related to counterfeit goods are prescribed in 03 articles of law:
Article 156, 157, 158 of the Criminal Code
Compared with the regulations on offenses of counterfeiting and
trading counterfeit goods in the Criminal Code of 1985, the provisions in
the Criminal Code of 1999 have many more appropriate changes in meeting
the requirements of the fighting against and preventing crimes of producing
and trading counterfeit goods. However, after more than 15 years of
application, the provisions of the 1999 Criminal Code on offenses of
producing and trading counterfeit goods had revealed many shortcomings,
especially in the current market economy.
3.2. Legal characteristics of crimes related to counterfeit goods
under the Criminal Code 2015 in comparison with the Criminal Code
1999
* The object of crime

According to the provisions of the Criminal Code 2015 (amended
and supplemented in 2017), the group of counterfeit crimes are under
Chapter XVIII: “Crimes of infringing upon economic management order”
and belong to “Section 1: Crime in production, business and commercial
sectors”. Thus, when looking at the overall view, we find that the Criminal
Code 1999 and the Criminal Code in 2015 have a similar definition
respecting the object of counterfeiting crime. Accordingly, the object of
criminal offenses is social relations related to economic management order,
state management order on production, circulation and distribution of goods
and market management which are protected by criminal law and abused by


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criminal acts. In addition, crimes related to counterfeit goods are also
harmful to social relations related to legitimate rights and interests of
consumers, infringing on production and business activities of enterprises.
* Objective aspect of crime
Although the group of counterfeiting crimes includes four articles,
the objective aspect of this group, in general, includes two categories
associated with different counterfeit objects, namely: producing counterfeit
goods and trading counterfeit goods. The offense is determined accordingly
depending on each specific case the offender commits.
The consequence of the crime of producing and trading counterfeit
goods is from the qualitative change of goods leading to damage to the
customers, which is the relationship of goods quality management as well
as consumer benefits, thereby causing damage for proper operation in cargo
circulation. Damage caused by the production and trading of counterfeit
goods might be material and non-material harms to society such as health,
human life, property damage to society and the reputation of the legal

business producer, including the stability of the market.
* The subject of crime
The Criminal Code 1999 does not consider legal entities to be one of
the subjects of crime; therefore, in cases where legal entity commits acts of
producing or trading counterfeit goods which satisfies the signs of crime
prescribed in Article 156 of the Criminal Code, that legal entity is not the
subject to criminal prosecution. For the first time in the history of
Vietnamese criminal law, the Criminal Code 2015 has issued regulations on
criminal liability of legal entities.
* Subjective aspect of crime
Subjective aspect of crime includes: errors, purposes, motives, in
which errors are signs reflected in all criminal components. For
counterfeiting crimes, crimes are committed due to a direct intentional
error. Acts of manufacturing and selling counterfeit goods are derived from


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profit motives, although the motive is not a mandatory sign of criminal
construction. The purpose of the offender is to take advantage of the
commercial reputation of the owner, to deceive consumers in terms of
product quality.
3.3. Legal provisions of some countries in the world for
counterfeiting crimes and experiences for Vietnam
Crimes related to counterfeit goods are not only regulated in
Vietnamese Criminal Code but also the laws of most countries in the world
have provisions on these types of crimes.
* Counterfeiting crime in accordance with US criminal law
In the US, counterfeit goods are particularly concerned by the
Government and citizens. American law does not provide a counterfeit

product concept; instead, the law provides a concept of counterfeit
trademarks or counterfeit military goods and services.
According to the federal law, Title 18, Section 2320 (a) United States
Code (U.S. Code) stipulates acts of willful trafficking in counterfeit goods,
which is considered criminal.
The abovementioned regulation and related legal provisions have
undergone many revisions since 2005. The Counterfeit Production Act,
Public Law No. 109-181 of Parliament and the Goods Protection Act, the
2005 US service (effective March 16, 2006) have expanded and clarified
the definition of “trafficking” and supplemented the terms of criminalizing
the trafficking of goods labeled or packaging branded counterfeit.
* Counterfeiting crime in accordance with French criminal law
The provisions of the law on criminal liability for counterfeit goods
are issued in the French Intellectual Property Code. The definition of
counterfeit goods is not codified in this country’s legal system; instead, the
law only identifies specific violations, with acts of being considered
criminals on counterfeit goods including:


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- Importing, exporting, re-exporting or transporting infringing
branded goods;
- Industrial remanufacturing of infringing-branded goods, directing or
ordering such acts for the purpose of trading, supplying, offering or lending
infringing-branded goods;
- Remanufacturing, forging, using, attaching, removing, changing a
common trademark, collective trademark or certified trademark which is
being protected.
* Counterfeiting crime in accordance with Chinese criminal law

Pursuant to the Chinese Criminal Law 1997, the crime of producing
and marketing counterfeit goods could also be prosecuted. Accordingly, the
act of producing and marketing counterfeit goods could be subject to
administrative or criminal law, depending on the severity of the
consequences caused to the society. Administrative sanctions could be
applied to acts of infringing upon intellectual property rights but not
satisfying criminal elements. It could be said that Chinese criminal law
provisions on counterfeit goods are quite comprehensive and consistent
with Article 61 of the TRIPs Agreement.
* Counterfeiting crime in accordance with British criminal law
The main anti-counterfeiting law in the UK is regulated in trademark
law and customs law. The 1994 Trademark Act includes civil and criminal
penalties for trademark infringement. The European Community Trademark
Regulation (207/2009) contains civil penalties for violating collective
trademarks. EU Customs Enforcement Regulation (608/2013) coming into
effect in 2014 abolishes the previous EU Customs Regulation (1383/2003),
allows Customs to arrest and destroy counterfeit goods. However, it has a
wider scope (for example, the trade name where they are protected under
national law) and has also introduced a new procedure to monitor small
shipments. Nevertheless, the new regulation does not extend to parallel
imports despite calls from some right holders to do so.


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* Counterfeiting crime in accordance with German criminal law
Article 143 MarkenG (German Trademark Act) lists the following
acts as criminals:
- Unauthorized use of signs identical or similar which causes
confusion;

- Unauthorized use of the mark for the purpose of exploiting or
damaging the reputation of a trademark;
- Illegal sale, marketing, storage, import or export of goods bearing
identical or similar signs, causing confusion.
Generally, a prerequisite for determining an infringement or a crime
is “being circulated”, according to Article 143 of the Trademark Act.
Sub-conclusion of Chapter 3
The act of manufacturing and selling counterfeit goods has existed
for a long time in history, in different forms, with laws in different periods
also having different ways to tackle this type of criminal. The study of legal
signs of crimes related to counterfeiting in the Criminal Code 2015 again
shows the overall picture of the development process of criminal law
regulating production and trading behavior concerning counterfeit goods.
The contents studied in Chapter 3 of the thesis are an important basis to
assess the practical application of the Criminal Code respecting trying
counterfeiting crimes, thereby finding the preeminent points as well as
limited ones in these regulations. This is the content that will continue to be
implemented in Chapter 4 of the thesis.


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CHAPTER 4
APPROPRIATE APPLICATION MEASURES
FOR CRIMES ON COUNTERFEIT GOODS
4.1. Practice concerning applying criminal law provisions to
counterfeiting crimes
4.1.1. The situation of trying counterfeiting crimes
Based on the trial data on crimes related to counterfeit goods (Article
156, Article 157, Article 158 of the Criminal Code 1999) throughout the

country from 2007 to 2018, some conclusions about the situation could be
drawn. The proportion of criminals on counterfeit goods accounted for a
very low percentage of the total number of criminal law violations
nationwide from 2007 to 2018 in both cases and number of defendants,
averaging only about 0.1 % to 0.15%. The number of trial cases for
offenses of producing and trading counterfeit goods of the years compared
to 2007 tends to increase; however, the number of defendants brought to
trial has fluctuated. The number of such cases brought to trial accounted for
32%, with the number of defendants accounting for 29.5% of the total
number of cases and the number of defendants of counterfeiting crimes in
11 years. In some years, the number of cases brought to trial accounted for
only 8% of the total number of cases in that year (as in 2007), while there
were also times when counterfeiting cases accounted for more than 50% of
the total number of cases (as in 2013, 2015). The number of cases brought
to trial has been increasing gradually from 2007 to now, especially from
2013 to 2015, with the last 2 years keeping stable. This trend is also quite
similar to the number of defendants brought to trial concerning such type of
crime.
4.1.2. Practice respecting determining criminal charges against
counterfeit goods
When studying 100 judgments related to the crime of producing and
trading counterfeit goods across the country from 2007 to 2018, the author


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found the majority of the procedural authorities, especially the People’s
Court, has applied the appropriate provisions of law when determining
criminal charges. Most cases with appeals or protests are due to the
Procuracy or the accused asking to reduce the punishment. However,

regarding the determination of counterfeiting crimes, the author found some
problems as follows:
- Misidentifying the objective aspect of crime in some cases;
- Being wrong to quantify the value of counterfeit goods;
- Misidentification and confusion with some other criminals;
- Mistakes in identifying counterfeit and shoddy goods.
4.1.3. Practice of deciding punishment for counterfeiting crimes
* The situation of deciding punishment for counterfeiting crimes
From 2007 to 2018, there were 1284 defendants nationwide to be
tried on counterfeiting crimes. The main punishment for counterfeiting
crimes, according to the provisions of the Criminal Code 1999, could be a
fine (Article 158) but mainly imprisonment, even for acts of producing and
trading counterfeit goods as produce, food, medicine (Article 157), with the
highest punishment applicable to offenders being life imprisonment or
death sentence. Notably, the non-custodial reform is not regulated as the
main sentence in the 1999 Criminal Code for crimes related to counterfeit
goods, but from 2007 to 2017, there were still 5 defendants (accounting for
0.44%) to apply this sentence. The explanation for this could only be the
case applying Article 47 of the Criminal Code 1999 - deciding the sentence
less than the provisions of the Code. When the sentence frame applied
follows the frame stated in Section 1 of Articles 156, 157, 158, the Court
could switch to another lighter sentence. The common sentence applicable
to counterfeiting crimes is 3-year imprisonment or less (968 defendants,
accounting for 84.6% of the total of defendants). Notably, the rate of
accused who was subject to conditional sentence exemption - suspended
sentence accounted for a relatively high rate (43.97%). Other imprisonment


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sentence accounted for a more limited percentage, and a 15-year to 20-year
imprisonment was only applicable to two defendants. In particular, no
accused has been sentenced to life imprisonment or death sentence.
4.1.4 Some practical issues posed when deciding sentence for
counterfeiting crimes
When studying 100 judgments across the country from 2007 up to
now, the researcher found that, basically, the determination of the sentence
frame for counterfeiting crimes has been quite accurate. However, the
sentence-deciding process still has some shortcomings:
- Not being uniform in determining sentence frame;
- Not yet agreeing upon when deciding sentences for offenders;
- Mistakes in some cases of deciding sentences lighter than the
provisions of the Criminal Code.
4.1.5. Causes of limitations and obstacles in applying regulations
on counterfeiting crimes
It can be seen that the application of legal provisions on
counterfeiting crimes in determining criminal charges and deciding
sentences has achieved certain results, demonstrating the role of criminal
law in fighting against and preventing crimes in particular and maintaining
social order in general. However, there are still some limitations and
obstacles in applying law; thus, determining the causes will make the
application of criminal law provisions on counterfeiting crimes more
accurate and effective. Through research, the cause comes from two
sources: from the provisions of criminal law (there is no clear concept of
counterfeit goods; the content of aggravating circumstances has not been
clearly explained…) and some other causes (perceptions of the law
appliers…).
4.2. Measures to ensure proper application of criminal law
provisions on counterfeiting crimes

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4.2.1. Requirements and directions for solutions to improve the
effectiveness of the application of criminal law provisions on
counterfeiting crimes
The improvement of the criminal law as well as measures to improve
the effectiveness of criminal law provisions on counterfeiting crimes in
order to meet the following requirements:
- Requirements of socio-economic development;
- Criminal policy requirements for counterfeiting crimes.
4.2.2. Measures to ensure proper application of criminal law
provisions on counterfeiting crimes
Based on the study of current legal regulations as well as the practical
application of the provisions on counterfeiting crimes, thereby analyzing
the causes of difficulties and obstacles in practical application of law, the
author offers a number of measures to contribute to ensuring the appropriate
application of the law concerning this group of crimes.
4.2.2.1. Solutions to improve criminal law
First, the concept of counterfeit goods should be given; counterfeit
goods are produce, food, additives; counterfeit goods are medicines;
counterfeit goods are animal food, fertilizers, veterinary drugs, plant
protection drugs, plant varieties and animal breeds.
Second, the concept of producing and trading counterfeit goods
should be given.
Third, an explanation of some of the facts of offenses and new
aggravation frameworks is needed in the Criminal Code 2015.
Fourth, there needs to be guidance in cases where there are many
offenses, or the aggravation framework belongs to different sentences.
Fifth, guide on prosecuting criminal liability of commercial legal

entities should be given.
4.2.2.2. Other solutions
- Summary of practical application of criminal law;


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- Improving the capacity of people applying criminal law;
- Improving propaganda, dissemination and legal education.
Sub-conclusion of Chapter 4
In this chapter, the author has focused on analyzing the practical
application of law on counterfeiting crimes. By analyzing data from 11-year
trial practice from 2007 to 2017, the author has pointed out the trend as well
as the status of trial on counterfeiting crimes in general and each specific
crime.
Based on the above studies, the author makes recommendations to
improve the legal provisions and measures to ensure proper and more
effective application of criminal law.