国家科技计划成果之政府介入权初探

A Preliminary Study on March-in Right on Achievements of the National Science and Technology Plan

政府介入权是政府依据法律或协议保留的在特定条件下对项目承担者保有的政府资助发明进行干预的权力。美国法律从实体和程序两个方面对政府介入权做了较为完善的规定,并已经发生了数起申请行使政府介入权的案例。反观我国的政府介入权制度,只有实体规定而无程序规定,并且实体规定也不完善,这种状况在一定程度上阻碍着政府介入权的行使。在《中华人民共和国科学技术进步法》的框架下,从实体规定和程序规定两个方面着手完善我国政府介入权制度,对于平衡公共利益与项目承担者利益之间的关系、促进政府资助科技成果的转移有着积极意义。

March-in right is a kind of authority reserved by the government under which the government, under cer- tain conditions, has right to intervene in the subject in- vention in which the contractor has acquired title. A- merica has developed a fairly sophisticated legal provi- sions on March-in right both in substantial and proce-dural aspects. Moreover, several cases relevant to march-in right have been occurred in America. Other- wise, our country＇s march-in right system comprises only substantial provisions which is not so perfect, but no procedural provisions, and this arrangement partly im- pede the excise of the march-in right. China should es- tablish its own march-in right system which comprises both substantial and procedural aspect in the framework of Science and Technology Progress Law, it will be meaningful to balance the relationship between the pub- lic interests and undertaking project enterprises＇ inter- ests, to promote the transfer of the scientific and tech- nological achievements funded by the government.