立法视角下职务科技成果所有权规定模式对比研究

职务科技成果权益归属是影响科技成果转化效率的关键因素之一，科技成果的权利性质、权利归属和管理权限划分，是政府引导市场机制发挥促进科技成果转化作用的前提和关键所在。目前各地区都在积极探索职务科技成果权属改革，很多地区在地方性法规中对其进行了规定。总结了我国各地法规对于职务科技成果所有权归属的规定模式，并对比分析不同模式的优劣势。研究发现：目前职务科技成果所有权在地方立法中的规定包括原则性规定、奖励一定比例权属份额、分类规定权属、赋予全部或部分权利、单位弃权后科研人员优先取得等5种模式，不同模式各有优劣；即便是同一种模式，在不同地区立法中也有着不一样的解读，对于各地职务科技成果所有权赋权改革也会产生不同程度的影响。

A Comparative Study on the Patterns of the Regulation of the Ownership of the Scientific and Technological Achievements in Posts from the Perspective of Legislation

The ownership right of job-related scientific and technological outputs is one of the key factors affecting the transformation efficiency of scientific and technological outputs. The nature of rights, ownership of rights and division of management authority of scientific and technological outputs are the premise and key for the government to construct the market mechanism to play its role in promoting the transformation of scientific and technological outputs. In recent years, China has continued to promote the ownership reform of job-related scientific and technological achievements, and clearly put forward the "exploration of giving researchers the property right or long-term use right of scientific and technological achievements", in order to stress the intellectual labor value of scientific and technological personnel.#br#In May 2020, the Ministry of Science and Technology and other nine departments jointly issued the Pilot Implementation Plan for Giving Researchers the Ownership or Long-term Right of Use of Job-related Scientific and Technological Achievements, and proposed to select 40 colleges and universities and scientific research institutions to carry out the pilot in different fields, so as to enter the substantive promotion stage of the ownership reform of job-related scientific and technological achievements. At present, all provinces are actively exploring the ownership right reform of job-related scientific and technological outputs, and many provinces have stipulated relevant local regulations. #br#This paper summarizes the regulation modes of the rights of job-related scientific and technological outputs in the laws and regulations of all provinces, and compares and analyzes the advantages and disadvantages of different modes. It is found that at present, there are five modes of ownership of job-related scientific and technological outputs in local legislation: principled regulations, a certain proportion of ownership shares, the ownership classification, full or partial rights, and priority to scientific researchers if their organizations abstain. Different modes have their own advantages and disadvantages, and even the same model has different interpretations in the legislation of different provinces (autonomous regions and municipalities directly under the central government), and will have varying degrees of impact on the ownership right reform of job-related scientific and technological Outputs. Therefore, this study aims to deepen the understanding of the pilot reform of ownership and empowerment of job-related scientific and technological outputs.#br#Further policy support is needed for the implementation of local regulations on promoting the transformation of scientific and technological achievements. It is beyond dispute that strong policy support is conducive to the implementation of laws and regulations. At present, there are some pilot projects of empowerment reform in various places. In practice, there are problems in some regulations and policies. Therefore, suggestions are made as follows. First, the government should strengthen publicity and improve relevant policies. Second, regulations and policies on the income tax after empowerment should be clarified. The cash reward obtained by scientific researchers can be included in the salary income of the current month at a reduced rate of 50% and pay individual income tax. So can it be implemented in accordance with relevant government documents after being empowered to scientific researchers? It is suggested that the government should clarify it as soon as possible.Third, it is suggested that all local governments and departments should establish corresponding fault tolerance and error correction mechanisms, explore ways such as negative lists, and formulate diligent and responsible norms and rules, so as to better promote the smooth implementation of the reform of the long-term use right and ownership empowerment of post scientific and technological achievements.#br#