职务科技成果赋权改革的法治标准及优化路径研究

The Legalization Standard and Optimization Path of the Empowerment Reform of Job-based Scientific and Technological Achievements

中国公立高校院所职务科技成果权属改革进入赋权科研人员的改革深水区。赋权改革关系到公共财产合理处置与国家知识产权安全建设,必须在法治框架内施行。只有以落实单位权属法定与依法赋权原则为形式标准、以落实合比例赋权原则为实质标准推进改革,才能以法治手段规避改革过程中政府与市场的双重失灵。当前中国职务科技成果赋权改革面临试点方案违背上位法、赋权决策不合比例等法治难题。鉴于此,有关部门应进一步梳理完善职务科技成果单位所有与依法赋权的顶层设计,从目的适当性、手段必要性与结果均衡性等实质法治标准出发修正现有赋权改革措施,重点完善公立科研单位赋权科研人员的国资管理宽容规范、权利共有规则体系以及公益保障机制。

In recent years,in order to encourage relevant institutions and researchers to actively participate in the transformation of related achievements,China has implemented a series of reform measures on the ownership of job-based scientific and technological achievements from the central to local levels.The relevant reforms can be divided into two parts.The first part is the reform to grant research institutions the right to use,dispose and benefit of scientific and technological achievements.The second is the reform of giving scientific researchers the ownership or long-term use right of job-based scientific and technological achievements,referred to as"empowerment reform".At present,the empowerment reform of scientific and technological achievements has entered a diversified phase.Some colleges and universities or local governments have issued some pilot reform measures,such as the compulsory mixed-ownership of job-based scientific and technological achievements.These measures lack the necessary theoretical demonstration and adjustment mechanism,and are easy to fall into the illegal and unreasonable predicaments.This phenomenon is closely related to the insufficient legalization of relevant reforms.This paper aims to explore the legal connotation and standards of the empowerment reform of job-based scientific and technological achievements from the perspective of formal and substantive rule of law,and discuss how to legally and reasonably dispose the ownership of job-based scientific and technological achievements with the attribute of state-owned assets in China and ensure that relevant subjects can reasonably and efficiently exercise the rights of achievements.The paper holds that in public scientific research institutions,the empowerment of the ownership of job-based scientific and technological achievements and the allocation of relevant rights and interests are related to the rational disposal of public property and the security construction of national intellectual property rights,and they must be implemented within the framework of the rule of law.Only by taking the implementation of the principle of legal ownership and empowerment according to law as the formal standard,and the principle of proportionality as the substantive standard,can it be possible to avoid the dual failure of the government and the market in the process of reform by means of the rule of law.At present,the empowerment reform of job-based scientific and technological achievements in China is confronted with the legal problems like the pilot scheme violates the upper law,and the empowerment decision-making is out of proportion.In particular,the problems such as the imperfection of tolerance and regulation of state-owned assets management in the disposal of scientific and technological achievements,the inadequacy of the rule for the empowerment,and the imperfection of information disclosure and government intervention mechanisms for relevant scientific and technological achievements exert direct influences on whether the empowerment reform can achieve sustainable and healthy development.In view of this,China should further improve the top-level design of ownership and legal empowerment of job-based scientific and technological achievements,and timely modify the conflicting laws and regulations.At the same time,China should improve the existing reform measures of empowerment from the substantive rule of law standards such as the appropriateness of purpose,the necessity of means and the balance of results.First of all,China should optimize the tolerance and regulation of relevant state-owned assets management for the purpose of effective transformation of achievements,so as to ensure the fulfillment of the purpose of empowerment.Secondly,China should establish comprehensive statutory rules for the exercise of ownership of job-based scientific and technological achievements to ensure the feasibility of empowerment measures.Furthermore,it is essential improve the information disclosure and government intervention system of public welfare-oriented achievement transformation,so as to ensure the maximization of the benefits of empowerment.Compared with the existing research,this paper puts forward some innovative ideas,for example the empowerment reform of job-based scientific and technological achievements must embark on the road of legalization if it is unaffected by policy,and it provides a plan for China to establish a job-based scientific and technological achievements empowerment system based on trust and rule of law.