论职务科技成果混合所有制的规范表达与完善措施

职务科技成果混合所有制借助共有制度,将单位与科研人员间的行政管理关系转变为民事法律关系,但从规范性视角而言,其存在三方面问题：①客体范围不清晰;②团队主体化与法律不兼容;③共有权行使缺少规范性建构。由于共有关系的运行依赖于客体合法性、主体有效性以及共有权行使规则的合理性,因此上述3个问题直接影响职务科技成果混合所有制的实践效果。基于政策法律化和法律政策化原则,在共有制度三要件的逻辑框架下,结合相关法律规定和政策目标,建议从3个方面进行完善：第一,通过修正《科技进步法》或扩大解释《赋予科研人员职务科技成果所有权或长期使用权试点实施方案》,扩大试点单位享有的知识产权范围;第二,明确单位与科研人员的二元主体结构;第三,构建符合政策目标的共有权行使规则。

On the Normative Expression and Improvement Measures of Mixed Ownership of On-duty Scientific and Technological Achievements

Southwest Jiaotong University has started the reform of mixed ownership of scientific and technological achievements, which has aroused fierce debate in the academic circles. From the perspective of operation mechanism, mixed ownership of scientific and technological achievements has changed the relationship between public institutions and researchers from administrative management to civil legal relationship by joint-ownership. The reform has greatly adjusted the original scientific and technological achievements management system of universities and scientific research institutions. In order to ensure the stability and order of the reform, the document makes macro provisions on the scope of scientific and technological achievements, operation processes and management responsibilities and so on. Although these provisions play a certain role, but from a normative perspective there are three problems. #br#First, the scope of the object is not clear. The reform involves patent,computer software,layout-design of integrated circuits,new plant variety,new varieties of biomedicine and technical secret of universities and scientific research institutions. The question is how to coordinate the relationship with the article 20 of Law of Science and Technology Progress(2007). According to the article 20 of Law of Science and Technology Progress(2007), universities and scientific research institutions only own the invention patent,computer software,layout-design of integrated circuits and new plant variety, the rest of achievements shall be owned by the state, such as technical secret. Therefore, it needs to explain the difference between the article 20 of Law of Science and Technology Progress (2007) and the document.#br#Second, the subject of rights contained research team is incompatible with law. Researchers contented individuals and research teams by the document. Civil subjects involve individuals,corporate bodies and unincorporated organizations in Civil Cord, so research teams aren't civil subjects that can't enjoy rights and undertake obligations. The contracts between research teams and universities restrain individuals instead of research teams. It can easily lead to non-standard measures that should to be solved.#br#Third, there is no normative construction of the rules for the exercise of joint-ownership. The document provides the frame on the process of conclusion of the contract,the rule of income distribution,decision mechanism,cost sharing mechanism and so on, but these provisions that reflect the ideas of policy makers are too macro to be operable. What we have to face is how to coordinate the relationship between policy and law to make the policy stable and flexible. To be more specific, how to structure the legal expression of policy that enable the public to obtain stable institutional expectations;how to improve the joint-ownership of intellectual property that reflect the objectives and value pursuit of policy. Joint-ownership of intellectual property depends on the legitimacy of the object, the validity of the subject and the rationality of the rules. Therefore, the above three problems directly affect the practical effect of the mixed ownership of scientific and technological achievements. #br#The article focuses on themixed ownership of scientific and technological achievements from three aspects. Firstly, we analyze problems and causes of the document under law. The cause of problems is that the document focused on administration ignoring the guidance of law.Secondly, we explore the negative influence of the problems of reform in practice. The practice of Southwest Jiaotong University have proved that these problems hinder the transformation, but relative research does not provide clear solutions for universities and scientific research institutions.#br#From the perspective of interaction between policy and law, based on the three elements of joint-ownership of intellectual property, combined with legal provisions and objectives of policy, the article presents three opinions. The first is to expand the scope of objects by amending the article 20 of Law of Science and Technology Progress(2007) to enable universities and scientific research institutions own all intellectual property rights in state-funded projects; The second is to establish the subject of rights that contain individuals and corporate bodies, and exclude the research team. This measure enables participants to comply with the subject of rights of civil law; The last is to construct the rules of the joint-ownership adjust to the policy objective, , build the basic legal framework of reform with the joint-ownership of intellectual property, and replace administrative relations with private legal relations between the individuals and universities or scientific research institutions. For example, the proportion of joint ownership is determined according to the principle of will autonomy. In addition,the management responsibilities of universities andscientific research institutions need to be become the rights and obligations relationship by the contracts. At same time, because researchers own the intellectual property by the document, so they can exercise rights according to their will and should not bear the obligation of diligence. To implement policy objectives of the document should change the joint-ownership of intellectual property. For example, in order to ensure the transformation activities, the transfer of rights by the righter needs to be restricted by three conditions(Term limit,limitation of transformation process and identity restriction of transferee). The universities and scientific research institutions have three voting rights at least to perform management responsibilities: the right of the first transformation region,right to provide information on the transformation and supervisory right.#br#There are some deficiencies in this article. The article only analyzes the relevant problems of the document from the normative perspective, lack of enough practical data. In the future, the author will conduct practical research, obtain corresponding data and conduct in-depth analysis.#br#