| Since the 18 th National Congress of the Communist Party of China put forward the innovation-driven development strategy in 2012,the concept of the "ownership of scientific and technological achievements" which accompanied the reform of the ownership of job scientific and technological achievements began to be written into the policy and legal texts.So far,there have been more than one hundred national policies involving this concept,and local people’s congresses and their standing committees such as Chongqing,Shenzhen,Chengdu,etc.have directly written this concept into local regulations.However,the current laws do not directly have legal rights under the name of "ownership of scientific and technological achievements" in China.Western countries often protect similar rights in the form of intellectual property rights or service invention patent rights.Thus,how did the concept of ownership of scientific and technological achievements come about? Is there a justification for its existence? If there is a justification,what is its legal connotation? If there is no legitimacy,what kind of civil rights should it be attributed to? Is it intellectual property or a new right whose nature is completely different from intellectual property? With these questions,combined with China’s special state-owned asset management system,the policy orientation of the transformation of scientific and technological achievements,and the historical context of the evolution of civil law ownership,following the logic of concept definition,historical traceability,local element exploration,legitimacy analysis,and interpretation of Chinese law,the paper is dedicated to explore the theoretical origins of the generation of the ownership of scientific and technological achievements,Chinese elements and their legal connotations in the context of the civil law.In addition to the introduction and conclusion,the full text consists of five chapters.The first chapter is about the issue of scientific and technological achievements and its expression of rights.As a proper noun in the field of science and technology management,scientific and technological achievements have changed in conjunction with the reform of my China’s scientific and technological system.At present,academic research,policy documents,and legal texts do not have a unified understanding and definition to the scientific and technological achievements and the ownership of it.Since there is no legislation that directly uses the term ownership of scientific and technological achievements abroad,this concept is created by Chinese scholars in the context of the transformation of scientific and technological achievements.In the history of civil law,the doctrine related to intangible property such as scientific and technological achievements originated from the "spiritual ownership" in continental Europe,but this doctrine evolved into intellectual property rights rather than the ownership of scientific and technological achievements.In the history of the evolution of the concept of ownership in civil law,it is not uncommon to borrow the concept of "ownership" to construct a rights system.There have also been variations in the extended use of ownership concepts such as debt ownership and right ownership in academic circles.The fundamental reason for its emergence is to imitate the concept of ownership.The power of "ownership" constructs rules to protect new rights objects.However,the definition of ownership and its object has been controversial in academic community for a long time.It is these protracted academic disputes that make the expression of the rights to scientific and technological achievements derived the title of ownership of scientific and technological achievements.The second chapter is the Chinese elements of the concept of the ownership of scientific and technological achievements.The ownership of scientific and technological achievements has become a concept with Chinese elements,which is related to China’s special institutional environment.First,the early concept of state ownership penetrated into the state-owned assets supervision theory of state-owned enterprises and institutions,and the scientific and technological achievements of state-owned asset management were naturally included in the category of "national ownership",and then evolved to the concept of the "ownership of scientific and technological achievements".Second,the development of market economy has given birth to the concept of commodity ownership.Scholars combined the ownership in economics with ownership in law,and the title of “technical commodity ownership” evolved from the direction that market transactions must first determine the property rights is grafted.Therefore,the concept of the ownership of scientific and technological achievements is formed.Third,the different translations of the "Intellectual Property" in different countries and the colloquial expression of "ownership" in daily life have led to the phenomenon that intellectual achievements and other spiritual products are referred to as "ownership" in different countries.Some countries even directly stipulates "intellectual property" in the property law,which has triggered scholars to express the "intellectual achievements" of scientific and technological achievements as "ownership." Fourth,in the translation of legal terms,Chinese scholars misunderstood and misused the "Delegation of Patent Rights of Service Inventions" in the Bayh-Dole Act,which went far beyond the provisions and original meaning of the Bayh-Dole Act.The interpretation of "Science and Technology Achievements" makes people mistakenly believe that the concept of the " Ownership of Scientific and Technological Achievements" comes from the Bayh-Dole Act or has a similar expression in the Bayh-Dole Act.The third chapter is the ownership of scientific and technological achievements under the perspective of traditional ownership.In legal philosophy and modern civil law theories,the connotation and extension of ownership are not consistent,and they are constantly changing with the development of society.In terms of legal philosophy,Locke’s labor theory of property rights emphasizes that ownership is the natural right of laborers to the fruits of labor obtained by their own labor.Rousseau’s social contract theory emphasizes that ownership is the right of property owner’s use and exclusive control of property based on the common recognition of all members in society.Kant’s libertarian theory emphasizes that ownership means that the subject regards an object as its own through its own free will.Hegel’s theory of property personality emphasizes that ownership is that the subject embodies his free will in the object and externalizes and realizes it.Tracing back to the theory of ownership in civil law,it is found that ownership in Roman law is a confirmation of "what do I own",but the two legal systems that evolved based on Roman law have different definitions of ownership.The ownership in the civil law system emphasizes the overall control of the "thing" by the right holder,while the ownership in the common law system does not highlight the distinction between the object of ownership as "property" and "thing".It emphasizes that ownership is a way of showing the attribution relationship between people and things.The "spiritual ownership theory" derived from the concept of ownership is just a simple conceptual imitation.The theory of intangible property rights circumvents the dispute between the two major legal systems about "things" and "property" as the object of ownership,and is not limited to "statutory property rights".Intellectual property rights derived from property rights are nothing more than borrowing the ownership rules in the property rights law to construct their own rules.The continuous expansion of the object of ownership and its different expressions in different legal systems tell us that the ownership system is just a system of law made by human.The ownership of scientific and technological achievements has the attributes of traditional ownership,and its conceptual title is not completely untenable.The fourth chapter is the analysis and cautious justification of the concept of ownership of scientific and technological achievements.From the perspective of law and economics,scientific and technological achievements are virtual property and an objective type of property.The law confirms and protects the interests carried by this property in the form of "ownership",which is actually policy tools for the state to adjust social interests.Traditional civil law theory defining the object of ownership as "things" is a kind of habitual thinking.The object of ownership is the result of historical evolution and reflects the attribution relationship between people and things.The concept of titled "ownership" usually borrows the construction method of "ownership".The construction method of "ownership" does not necessarily have the meaning of the civil law of ownership.Moreover,the use of "ownership" to protect abstract objects has historical inheritance,which conforms to the legal philosophy of ownership.Therefore,borrowing the principles of property law,especially the ownership system,to construct the ownership system of scientific and technological achievements does not appear to be alien.However,scientific and technological achievements are different from "things".They have the dual attributes of property relations and personal relations,and do not have the same property rights as traditional ownership.The powers of the two are not the same.Incorporating them into legal provisions will lead to intellectual property rights.It is confused with the concept of property rights,breaking the civil rights system established by the Civil Code,and in the practice of transforming scientific and technological achievements。It still belongs to the adjustment category of intellectual property law in essence.Limited by the above-mentioned confusion,the expression of rights of scientific and technological achievements can also learn from the "proprietary" or "exclusive" expressions in the intellectual property law to transform the ownership of scientific and technological achievements into "exclusive rights of scientific and technological achievements."The fifth chapter is the ownership of scientific and technological achievements system and the determination of its scope.The exclusive right of scientific and technological achievements is only a formal transformation of the concept of ownership of scientific and technological achievements.In the policy practice of "entrusting scientific research personnel with the ownership of scientific and technological achievements",the above two concepts have the same legal connotation and scope.The ownership of scientific and technological achievements has been accepted by the practitioners and entered into the legislation.Constrained by the possible increase of policy and legislative costs of conceptual transformation,the interpretation of its legal definition,legal nature,and legal relationship based on the original concept is of great significance to the improvement of China’s technological innovation legal system The ownership of scientific and technological achievements is the right of the holder to monopolize the achievements created by specific scientific and technological activities in accordance with the law and exclude others from interference.It has private rights genes such as participating in market transactions as commodities,resisting infringements of public power,and protecting "things" in the civil law.In the context of the reform of the property rights system of scientific and technological achievements,it is necessary to clarify the criterion and scope of the judgment of scientific research personnel as the subject of scientific and technological achievements,take the "intellectual product theory" of intellectual property objects as the doctrine of judging scientific and technological achievements,and make the "four powers theory" of possession,use,profit,and disposal in the civil law in China as the theory of power structure for the ownership of scientific and technological achievements.In practice,we should focus on clarifying the methods and rights of obtaining scientific and technological achievements obtained by government procurement,scientific and technological achievements obtained by government-sponsored scientific research enterprises and institutions,and scientific research projects funded by government financial funds.As for the "a certain proportion" in "a certain proportion of ownership of the scientific and technological achievements assigned to scientific research personnel",it raises the common problems of scientific and technological achievements,and its rule structure should focus on the following factors: namely,who decides or reflects whose will of the scientific research activities that produce the scientific and technological achievements,who bears the risk of scientific research failure,and who can better promote the transformation and application of scientific and technological achievements. |
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