科技法迭代视域下芯片国产化的法律规制与引导——也谈“华为”如何破局

芯片应用的广度和深度使其成为国际竞争的核心战略资源，并且，近年来因部分国家对于中国进口的封锁和阻力，芯片国产化的意义进一步凸显，这一关键技术的自主研发及生产也成为科技法迭代时期面临的重要难题。一方面，从芯片特异性出发，在厘清现存问题的基础上，以“内发型”法的现代化为视角，应革除科技法律责任虚置化并完善给付义务，同时，纠正科技创新市场失灵、完善产业链条规划；另一方面，以“引导向”科技法为目标，推进“监管向”转变、加强科研引导的有效性和针对性，同时，鼓励多元化创新，构建中国特色调控体系，助推芯片国产化进程，服务“十四五”建设，造福国计民生。

Legal Regulation and Guidance of Chip Localization from the Perspective of Science and Technology Law Iteration：Concurrent Discussion on How Huawei Can Break the Deadlock of Sanctions

The breadth and depth of chip applications make it a core strategic resource for international competition.In recent years, due to the blockade and resistance of some countries to China's imports, the significance of chip localization has been further highlighted, and the independent research and development and production of this key technology has also become an important problem during the iteration of science and technology law. At present, there is still a generation gap in the basic research fields related to China's chip industry, especially compared with the United States in the production process, resulting in the technology bottleneck of short-term independent R&D and manufacturing of chips, and the international competitiveness of high-end electronic products is weakened. From the legal point of view, There is a lack of effectiveness and relevance in China's existing science and technology legal system for chip research and development and manufacturing. At present, the iteration of science and technology law is at an important stage. If we take the formulation of scientific and effective policies and laws as the guidance to carry out reform, it is an important opportunity to face up to deficiencies, overcome bottlenecks and difficulties. In the context of the iteration of science and technology law, how to base on local characteristics, grasp international trends, focus on key technologies, layout strategic regions and develop strategic emerging industries are the key issues that science and technology law should pay attention to during the 14th Five Year Plan period.#br#2021 is an important year for the implementation of the civil code and an important window for the reform of scientific and technological laws and regulations. At present, it is urgent to adjust industries that do not adapt well to ensure that important areas related to people's livelihood and national security, such as chips, are scientifically and effectively supervised and guided. On the one hand, from the perspective of modernizing the "internal haircut" law, starting from the specificity of the chip on the basis of clarifying the existing problems, we should eliminate the fictionalization of the legal responsibility of science and technology and improve the obligation to pay, build the supporting special norms as soon as possible, correct the market failure of science and technology innovation, improve the planning of the industrial chain, strengthen the obligation to build the innovation environment, and guarantee the right to development in scientific research activities. At the same time, we should strengthen risk management and planning layout, establish long-term prevention mechanism, and construct exemption mechanism to support independent innovation. On the other hand, with the goal of guidance to science and technology law, promote supervision to change, strengthen the effectiveness and relevance of scientific research guidance, clarify the criteria of financial support, strengthen the obligation of government procurement, at the same time, with administrative power to deploy resources, coordinate forces, play the advantages of post-developed innovation; encourage diversified innovation. Encourage diversified innovation, build a regulatory system with Chinese characteristics, and promote the process of chip localization. The "14th Five-Year Plan" construction, to benefit the people's livelihood.#br#In addition, at the enterprise level, we should promote the development of the whole industrial chain and cultivate high-quality leading enterprises; we should take the leading enterprises as the main body of innovation, give full play to the later advantages, further digest and absorb the existing technology, enhance the ability of independent innovation and realize disruptive innovation. The study also puts forward suggestions on applying to China's anti-monopoly law enforcement agency for investigation, intellectual property countermeasures and international law intervention. In the future, China will continue to unswervingly build a manufacturing power, a quality power, a network power and a digital China, and improve the quality efficiency and core competitiveness of the economy. The development of chip technology and its deep integration with various industries will become the key link. It is believed that under the guidance of national policies and regulations and with the active cooperation of enterprises and other innovative subjects, the darkest moment of the international environment will eventually pass, and domestic chips will eventually become the mainstream of the world. Enterprises should actively cooperate with the government to form a joint force, overcome difficulties and actively safeguard their rights and we can realize the right relief from the three dimensions of antitrust law, intellectual property law and international law.#br#