Legal representation, development trend and property right market of intangible assets.
Different disciplines have different expressions of intangible assets. The expression of intangible assets in accounting and evaluation can be summarized into the following three methods:
Comparative method: intangible assets are relative to tangible assets, and its connotation is revealed by comparative method. "Intangible assets refer to assets that are controlled by a specific subject and have no independent entity, but have a long-term sustainable role in production and operation and have profitability" (Introduction to Asset Appraisal)
Enumeration: use the extension of intangible assets to express the connotation. "Intangible assets refer to assets that have been used by enterprises for a long time but have no physical form, including patents, trademarks, copyrights, land use rights, non-patented technologies and goodwill" (General Principles of Enterprise Finance). This enumeration method is also a traditional classification of industrial property rights and copyrights. However, foreign enumeration rules also list the proprietary technology rights of trade secrets and technical secrets as intangible assets.
Essence Revealing Method: The traditional view is the economic resources that enable enterprises to obtain profits, especially excess profits. According to the definition of accounting and evaluation, intangible assets are economic resources that can bring economic benefits.
Economic definition: intangible assets are the capital of intellectual creation.
Legal definition: Intangible assets are intellectual property rights. That is, the owner of intellectual creation has the right to use, manage, benefit and dispose of it. The essence of intangible assets is "intellectual creation", that is, new technological creation and innovation, which is the core of knowledge economy era, or new technological revolution and information property theory.
Differences in the expression of intangible assets at home and abroad: apart from the different disciplines of expression methods, the differences mainly stem from different levels of knowledge economy development, different economic systems, different concepts of intellectual property rights and different extensions of intangible assets involved. For example, land use rights are listed as intangible assets in China, which can be transferred, invested and mortgaged. In countries with private ownership of land, intangible assets do not include land use rights, and land ownership owned by enterprises is classified as fixed assets. For example, western countries classify leased fixed assets as intangible assets and so on.
With the development of today's knowledge economy era, intangible assets have formed a new stage and new pattern of knowledge-led economic development, and its inevitable trend is to occupy an increasingly dominant position in economic resources. For example, Academician Wu Wenjun, who won the highest national science and technology award in 2000, used computers to prove mathematical theorems and solve nonlinear equations, which opened up a new road for the development of mathematics in the information age; Academician Yuan Longping's new theory of rice hybridization has achieved a historic breakthrough in rice breeding, with an average yield increase of 20% and a cumulative yield increase of 350 billion kilograms, which has produced great economic and social benefits. Practice has proved that the mode of national economic growth and the comprehensive strength of the country are increasingly dependent on scientific and technological innovation as the primary productive force, thus becoming the decisive resource to determine the outcome of domestic and international market competition-the intangible assets of technology types. The World Trade Organization has listed intellectual property rights as one of the three pillars of the world trading system. The United States relies on science and technology to improve its comprehensive national strength, and the industrialization of technological intangible assets has risen rapidly in the domestic industrial structure. The contribution rate (over 60%) of information industry to the growth of American economy (GNP) ranks among the top in the world. More than 80% of jobs in the United States belong to knowledge-based mental work, and the rich with knowledge and wealth rank rapidly among the world's richest people. Taking Gates of the United States as a typical example, according to the statistics of the World Bank, 64% of personal wealth in the world consists of human capital. At present, the extension of intangible assets is constantly expanding, and the basic contents of intangible assets property rights include: invention patent right, proprietary technology right, integrated circuit right, industrial design machine, copyright (copyright) and adjacent communication right, software right, trademark right, goodwill right, manufacturer name right, franchise right, license right, land use right, lease right, sales network right and so on. Shanghai Intellectual Property Work Conference has made it clear that cross-century Shanghai's economic development has entered a new stage mainly driven by knowledge innovation, and intellectual property rights such as patents, trademarks and copyrights have been developed. In 2002, the number of patents, trademark applications and computer software registrations in Shanghai entered the top three in China, especially for high-tech invention patents.
Intangible assets property rights trading market, with the capital of high-tech intangible assets mainly engaged in high-tech entrepreneurial sectors entering the market, the technology property rights trading market was first established in June, 1994, five years after the Shanghai property rights trading institution was first established in April, 1999. The transaction volume of these two property rights exchanges in Shanghai has exceeded 60 billion yuan in 2000, and it is estimated that it will reach 80 billion yuan in 200 1 year, becoming an important capital market in Shanghai.
At present, the two property rights exchanges have formed operating procedures and norms for listing, trading and verification of intangible assets, and the Shanghai intangible assets property rights market has been brought into the legal track.
Market subject and legal status of intangible assets property rights
The owners of intangible assets (legal persons and natural persons) are the main body of the property rights market. This was gradually clarified after the implementation of the strategy of "rejuvenating the country through science and education". In the past, the traditional subject was enterprise legal person, both of which were state-owned or collectively owned public enterprise legal persons, that is, the subject was single, and the individual creator of intangible assets, that is, natural persons, was excluded from the market subject. Since 1999, the central and local laws and regulations have explicitly removed the ownership restrictions, and not only enterprise legal persons, but also natural persons (individuals) can declare scientific and technological achievements transformation projects. When a natural person bids for a project company, the results can be invested as intangible assets. As a result, a large number of private scientific and technological enterprises have sprung up and developed rapidly. At the same time, foreign-invested enterprises registered in Shanghai are encouraged to develop secondary innovative products. In this way, the diversification of the subject and ownership of intangible assets has expanded and enlivened the intangible assets property market as never before, creating a market environment that is in line with international standards.
Around the main body of intangible assets property right market, Shanghai intangible assets technical property right market has formed a "recognition system" for high-tech achievements projects-setting up "venture capital" for high-tech achievements transformation-establishing an operation system for high-tech achievements transformation "acting as the heart", and providing market main body with supporting services such as technical level confirmation, market prospect, project risk, transaction establishment, industrial and commercial registration, tax registration, policy and legal consultation, etc.
Object of market of intangible assets property right and its legal protection
There is a gradual development process for intangible assets to enter the technology property rights trading market: at the beginning of the reform and opening up in the 1980s, intangible assets such as land use rights, patents, proprietary technology, copyrights, trademark rights and goodwill entered the capital market to flow and combine; With the implementation of the strategies of "rejuvenating the country through science and education" and "rejuvenating the city through science and education" in the 1990s, the challenges and opportunities of the wave of technological revolution at the turn of the century after China's accession to the WTO have accelerated the establishment of a market-oriented, enterprise-oriented, Industry-University-Research-based transformation mechanism of high-tech intangible assets, accelerated the transformation and industrialization of high-tech achievements, and realized the transformation of the way of promoting economic growth with high-tech intangible assets. Shanghai gradually increased its investment in science and technology, and the largest scientific and technological project (integrated circuit design industrialization base) in 2O00 invested more than 1 100 million yuan. As the leader of contemporary technological revolution, the contribution rate of information industry to Shanghai's economic growth has been increasing, from 7-8% in 1998 to1.1%. In 2000, Shanghai information industry became a leading enterprise with an annual output value exceeding 1000 billion yuan.
With the development of high technology in depth and breadth, it is more and more difficult to generalize intangible assets into two traditional categories: creation and marking. For example, trade secrets were listed as "symbolic" in the Paris Convention and "creative" in the Tokyo Conference. Another example is the database protection instruction, which is also a dilemma. Because these two categories cannot be covered, the diversity of intangible assets' essential "intellectual creation" determines the diversity of intangible assets' categories and the intersection of knowledge disciplines. At the same time, it also brings a new problem of expanding the scope of protection to the legal protection of intangible assets. According to its tangible and intangible classification, the legal protection of its object is protected by two forms, namely, certain and uncertain legal protection. It has created a legal protection environment for the best market portfolio of high-tech intangible assets resources at home and abroad after China's entry into WTO.
Legal Status and Legal Responsibility of Appraisal Institutions in the Property Right Market of Intangible Assets
Intangible assets appraisal institutions have an important economic and legal status and role in protecting the rights and interests of property owners of public assets and regulating the operation of property rights market transactions, mainly as follows:
First of all, the value of intangible assets is determined objectively and fairly through asset evaluation. This is the basic management work of an enterprise, the reference price for determining the transaction of technical property rights of an enterprise, and an important assessment basis for the enterprise to maintain and increase the value of assets of asset managers.
The second is to clarify the property rights of intangible assets of science and technology enterprises through asset evaluation. This will protect the legitimate rights and interests of intangible assets, thus accelerating the incubation of scientific and technological enterprises and giving play to the role of science and technology as the primary productive force.
The third is to prevent the loss of public assets through asset evaluation. Practice shows that non-evaluation, missing evaluation, low evaluation and wrong evaluation of intangible assets in the change of public assets' rights and interests are important channels for the loss of public assets. At present, it is mainly reflected in three aspects: first, the actual price of replacing evaluation with agreement is far from the actual price, and there are many contradictions such as the definition of property rights, the division of assets and the secret loss of public assets; Secondly, in the restructuring of public-owned enterprises, operators and producers are driven by the interests of holding shares, and there are often cases of no evaluation, missing evaluation and low evaluation; Third, there is no comment, low comment and no agreement confirmation between state-owned and collective enterprises, which has been repeatedly banned. It is also plausibly said that the loss and inflow of intangible assets are balanced between state-owned and state-owned, collective and collective, and there is no loss of assets, so there is no need to evaluate assets at one stroke.
The fourth is to effectively curb corruption in power and money transactions with asset appraisal. This is also an important link to strengthen the construction of modern enterprise system. Practice has proved that the phenomena of non-evaluation, missing evaluation and low evaluation of intangible assets, in addition to cognitive bias, also exist corruption in power and money transactions that can not be ignored. From this point of view, this is also a measure of spiritual civilization construction of modern enterprise system.
To clarify the role and legal responsibility of intangible assets evaluation, we must fully understand the particularity of intangible assets evaluation, which is very beneficial to standardize the operating procedures of intangible assets evaluation, correctly select the evaluation methods, and thus correctly play the role of evaluation institutions and assume corresponding legal responsibilities. Intangible assets evaluation has three particularities:
The first is to define and identify the authenticity of intangible assets. Different from tangible assets, the evaluation of intangible assets is based on the legitimacy and income of intangible assets, that is, the basic work is more detailed and solid than the evaluation of tangible assets, and the corresponding legal responsibilities are also very clear.
Second, the singleness and non-repetition of intangible assets lead to poor comparability of intangible assets evaluation. This is determined by the particularity of the production and reproduction process of intangible assets. The production cost of the same intangible assets is completely different from the socially necessary labor consumed. In addition, the diversification of technical subjects, the enjoyment of technology and the multi-level transaction price of intangible assets in the process of transfer all prove to be lack of comparability, so the applicability of the current market price method to evaluate intangible assets is very small. Technical intangible assets are represented by high-tech innovative enterprises, and their intangible assets are mainly evaluated by income method. Correct selection of intangible assets evaluation methods and evaluation of fair market prices, so as to bear objective and fair legal responsibilities.
Third, the rapid development of science and technology and fierce market competition bring about the dynamic nature of intangible assets evaluation. This is another important issue that intangible assets evaluation should bear fair and objective legal responsibility. Due to the accelerated technological renewal cycle (generally shortened to about five years), intangible assets may even lose their commercial value in a short time, and changes in social, economic and legal environment also need dynamic assessment.
Legal principles and methods of intangible assets property right confirmation
Compared with the property rights and interests of tangible assets, we should pay special attention to the following five factors when grasping the legal principles and methods for determining the property rights and interests of intangible assets:
-Cost. It involves original development cost and opportunity cost. Intangible assets are the results (products) of intellectual creation activities, and their formation process is single and primitive individual production, which is very different. Its materialized labor is comparable and easy to measure, so the value of living labor cannot be measured by unified socially necessary labor time, and there is no absolute positive correlation and negative correlation between cost and value. In view of the particularity of living labor in the development cost of intangible assets, basic research, applied research, risk compensation, accumulation and creative labor must be considered comprehensively. The opportunity cost problem is mainly the input-output rate of return affected by the ratio of technology monopoly rate and market share that enterprises who buy intangible assets should consider.
-Welfare. It involves the unification of economic benefits, social benefits and ecological benefits. Intangible assets such as some high-tech achievements in environmental protection industry not only have remarkable economic benefits, but also have obvious social and ecological benefits. When determining the evaluation value, the comprehensive benefits of economy, society and ecology should be taken as the standard. Special attention should be paid to the evaluation of intangible assets with low economic profit and high social and ecological profit. We should put the social and ecological benefits of environmental problems in an important position, expand the weight, and make them the main positive correlation factors of the evaluation value, and vice versa.
-Bicycles. It involves four stages of technology in the life cycle of intangible assets: market introduction period, growth period, maturity period and decline period. The advancement and profitability of the four periods are different at different stages, and the corresponding evaluation values should be clearly distinguished. The key to evaluation is to firmly grasp the following two points: first, correctly judge the life cycle of technology, and the length of the cycle is positively related to the evaluation value; The second is to correctly judge the stage of technology evaluation and the corresponding risks.
-Time limit. The legal protection period and technical life cycle of the legal environment involving the use of the intangible assets technology. The longer these two periods, the higher the evaluation value, and vice versa.
-Procedures. The process of intangible assets evaluation can be summarized as "five determinations": the determination of ownership type; Determination of remaining economic life (usable life); Cost and profitability measurement; Selection of evaluation methods (cost method, market method, income method).
Property right transaction policy and legal environment of intangible assets
At the turn of the century, the state has successively promulgated the Law of People's Republic of China (PRC) on Scientific and Technological Progress, the Law of People's Republic of China (PRC) on Promoting the Transformation of Scientific and Technological Achievements, and Several Provisions on Promoting the Transformation of Scientific and Technological Achievements to encourage the development of high and new technologies. The Zhongguancun Regulations of Beijing and the Shanghai Municipal People's Government have successively promulgated the Provisions of Shanghai Municipality on Promoting the Transformation of High-tech Achievements, the Measures for the Administration of Shanghai Property Rights Transaction, and local laws and regulations on the transfer, transaction, management and supervision of property rights, creating a trinity environment of technology, capital and market, and promoting the industrialization, capitalization, standardization and institutionalization of the transformation of intangible assets property rights achievements;
The first is the environment of policy support. Give special support to projects and products with independent intellectual property rights, the registered capital of high-tech enterprises can be put in place step by step, and high-tech intangible assets can participate in investment, and the proportion of their achievements in the registered capital can exceed 20%, up to 35% (the agreement can also be raised to 5 1%).
The second is the diversified environment of the subject. Encourage technical elements to participate in the distribution, support scientific and technical personnel to engage in scientific and technological transformation part-time or leave their posts, and form a diversification of intellectual property rights in the transformation of intangible assets.
The third is to optimize the talent environment and promote the transformation of intangible assets. Set up a talent development fund to support outstanding talents; Scientific and technical personnel who transform intangible assets in other provinces and cities can get Shanghai household registration support and be exempted from paying urban construction fees; Excellent intangible assets project transformation personnel can evaluate professional and technical professional qualifications.
The particularity of the legal relationship between * * * and intangible assets property rights market transactions.
Like the property right transaction of tangible assets, the property right transaction of intangible assets takes the asset appraisal price as the reference price, which is the "central axis" of the transaction price. The transferor and transferee fluctuate on the "central axis" according to the transaction price of market supply and demand, and trade by auction. This is the main clause of the subject matter value of the rights and obligations of the transferor and the transferee in the text of the transaction contract. This is sex. The property right transaction of intangible assets has its inherent particularity, that is, it needs to pay attention to two links: first, the technical content and monopoly degree of the intangible assets being evaluated. That is, the content of technology, the length of life cycle and the stage in the cycle determine the level of evaluation, the conditions of transfer and the corresponding trading methods. In June, 2000, the first auction of intangible assets (high-tech) property rights in Shanghai, the total starting price of six targets was 65.438+0.2 billion yuan, of which only 1 was taken away at 6.5438+0.0 million yuan, the other two options were "reserved" and three were "not sold". The sound of the hammer is so sparse that it fully shows that the high risk and difficulty of intangible assets property right transaction come from the uncertainty of technical achievements, technical cycle life and market share. Corresponding auction methods should be different from physical forms, such as long preview period, bidders must have a basic understanding of special products of scientific and technological achievements, and auction methods should be innovative and diverse. The second is the choice of payment method. For the transfer of technical intangible assets, there are few lump-sum payment methods, and most of them adopt the method of commission pricing, or commission according to output or price and profit, so that both the transferor and the transferee can enjoy the benefits and bear the risks. These two links involve the main provisions of the rights and obligations of both parties in the text of the transaction contract, such as the value of the subject matter and the payment method.
Adjustment of intangible assets property rights and property rights market protection law and legal framework adjustment of intangible assets property rights (intellectual property rights) law: First, the extension of protection scope. With the development of knowledge economy, biotechnology, Internet, computer software, satellite broadcasting, genetically modified engineering and other high and new technologies are constantly emerging. This not only belongs to the expansion of the scope of intellectual property protection, but also puts forward new fields and corresponding protection methods for patent law, trademark law and copyright law; Moreover, it also involves adjusting and coordinating new conflicts, such as the controversy caused by the "gender" identification technology of biotechnology and the "cloning" animal reproduction technology in the moral field, the challenge of network development to the current copyright concept (such as the online music exchange of network companies enjoying music services, the impact on traditional copyright law), and even the collision between the registration of network domain names and the current trademark rights, and so on. The second is the change of protection period. This is determined by the rapid development of knowledge economy. The life cycle of technology is shortened, and the protection period of patents and copyrights should be dynamically adjusted according to different industries. The third is to intensify the punishment of intellectual property crimes. Because of the intangible characteristics of intellectual property rights, it is necessary to discuss a series of problems such as the concept, object, form and constitutive elements of crimes in order to improve the criminal law protection of intellectual property rights and increase the punishment of intellectual property crimes more accurately.
Legal framework of property rights market legislation: As the property rights capital market in China, Shanghai has more than seven years of practical experience in intangible assets property rights market and tangible assets property rights market, and Guangzhou and Shenzhen have also accumulated a lot of experience. As a property rights capital market, after the People's Republic of China (PRC) Securities Law, which regulates the stock market, China urgently needs to formulate the People's Republic of China (PRC) Property Rights Exchange Law, including intellectual property rights, in order to comply with the call of the property rights market, standardize the property rights market, and bring the property rights market, including intangible assets, into the legal track. At the same time, the GEM, backdoor acquisition, M&A custody, lease grafting, partnership spin-off, joint ventures and other forms of capital markets will be brought into the national unified property rights market system. In particular, the entrepreneur board (China's second-board market) is intrinsically related to the intellectual property rights of intangible assets and the industrialization of intangible assets, and should be included in the property rights market.
Legal framework of property right market;
First, the macro-control laws and regulations of the property rights market.
Secondly, the legal norms of real estate market management and market system.
Third, the real estate market rules and procedural law norms.
Fourth, the subject of property market and the legal norms of subject behavior.
Fifth, the legal norms of intermediary institutions in the property rights market.
Sixth, the standardization of asset appraisal law in the property rights market.
Seventh, the legal norms of foreign-related purchase and sale enterprises in the property rights market.
Eighth: the regulation of the property right market by the information industry management law
Nine. The regulation of the property rights market by the member management law
Tenth: the provisions of the law on the administration of economic persons in the property market
Article 11: Standardization of the Law on the Management of Transaction Contracts in the Property Rights Market
Article 12: Other legal norms of the property right market
It can be said that after China's entry into WTO, it is imperative to legislate to protect and promote the market transactions of intangible assets. Accordingly, a series of work, such as the adjustment of intangible assets property rights institutions (referring to the merger of patent, trademark, copyright and other institutions), the establishment of institutions in the intangible assets property rights publicity system, the education, publicity and popularization of intangible assets property rights and laws, urgently need to increase the breadth and depth of promotion and do a solid foundation work for intangible assets property rights legislation.