With the implementation of the strategy of "rejuvenating the country through science and education", the scientific and technological revolution represented by information technology is developing rapidly, and the pace of the knowledge-based economy era of "economic globalization" is accelerating, our country's national economy increasingly relies on science and technology. With progress, the proportion and role of intangible assets in economic resources will increasingly rise to an important position, and the intangible assets property rights market will surely become an important domestic capital market. This article combines the author's work practice, summarizes Shanghai's practical experience, and expresses brief opinions on the legal issues of my country's intangible assets (focusing on intellectual assets) property rights and property rights markets, seeking advice from experts and colleagues.

Legal expressions, development trends and property rights market of the connotation of intangible assets

Different disciplines have different expressions of intangible assets. The expression of intangible assets in accounting and valuation can be summarized into the following three methods:

Comparative method: Intangible assets are compared with tangible assets, and their connotations are revealed by the comparative method. "Intangible assets refer to assets that are controlled by specific entities and do not have independent entities, but continue to play a long-term role in production and operation and have profitability" ("Introduction to Asset Valuation")

Enumeration method: Intangible assets The denotation is used to express the connotation. "Intangible assets refer to assets that are used by enterprises for a long time but have no physical form, including patent rights, trademark rights, copyrights, land use rights, non-patented technologies, goodwill, etc." ("General Principles of Corporate Finance"). This enumeration method is also a classification method consisting of two parts: traditional industrial property rights and copyright. Foreign enumeration laws also include trade secrets, technical secrets, KNOW-HOW rights, etc. as intangible assets.

Essence revealing method: The more traditional view is the economic resources that enable enterprises to obtain profits, especially excess profits. Definition based on accounting and valuation: Intangible assets are economic resources formed by intellectual creations that can bring economic benefits.

Defined by economics: Intangible assets are the capital of intellectual creation.

Based on legal definition: Intangible assets are intellectual property rights. That is, the owner of intellectual creations has the right to use, operate, profit and dispose of it. The essence of intangible assets is "intellectual creation", that is, new technology creativity and innovation. This is the core of the era of knowledge economy, or new technology revolution, and information property rights theory.

Differences in the expression of intangible assets at home and abroad: In addition to the different expression methods and disciplines, the differences mainly stem from the different development levels of the knowledge economy, different economic systems, different intellectual property concepts, and the different extensions of the intangible assets involved. . For example, land use rights are classified into the category of intangible assets in our country. They are a very special intangible asset that can be used for transfer, investment, and mortgage. 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. Another example is that Western countries classify the leasing of 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 economic development dominated by knowledge. Its inevitable trend is to occupy an increasingly dominant position in economic resources. For example, in 2000 Academician Wu Wenjun, who won the annual National High Technology Award, used computers to prove mathematical theorems and solve nonlinear equations, opening up new ways for the development of mathematics in the information age; Academician Yuan Longping's new theory of rice hybridization achieved a historic breakthrough in rice breeding, increasing average yields 20%, a cumulative increase of 350 billion kilograms of rice production has been achieved, producing huge economic and social benefits. Practice has proved that the growth pattern of the national economy and the country's comprehensive strength increasingly rely on the primary productive force of scientific and technological innovation, and have thus become the decisive resource that determines the outcome of domestic and foreign market competition - technology-type intangible assets. 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 overall national strength, as well as the rapid rise of industrialization of technology-type intangible assets in the domestic industrial structure. The information industry has contributed to the growth of the U.S. economy (GNP). The contribution rate (more than 60%) ranks among the best in the world. More than 80% of all jobs in the United States are knowledge-based brain work. The ranking of knowledge-rich rich people is rapidly rising among the world's richest people. Gates of Microsoft Corporation of the United States is the most popular. Typical evidence is that his personal net worth reaches US$51 billion, ranking among the 200 richest people in the world. According to the World Bank report, 64% of the world's wealth is composed of human capital.

From the current point of view, the extension of intangible assets continues to expand. The basic contents involved in intangible asset property rights are: invention patent rights, proprietary technology rights, integrated circuit rights, industrial design machines, copyright (copyright) and adjacent communication rights, software rights, Trademark rights, goodwill rights, manufacturer name rights, franchise rights, licenses, land use rights, lease rights, sales network rights, etc. The Shanghai Intellectual Property Work Conference has made it clear that Shanghai's economic development across the century has entered a new stage that is mainly driven by knowledge innovation. The three pillars of intellectual property development are patents, trademarks and copyrights. In 2002, Shanghai's patent, trademark applications and computer software registrations It has entered the top three in the country, especially for invention patents with high technical content.

In the intangible assets property rights trading market, as the capital of high-tech intangible assets, mainly in the high-tech entrepreneurial sector, enters the market, five years after Shanghai took the lead in establishing the Shanghai Property Rights Trading Institution in April 1994, In 1999, it took the lead in establishing a technology property rights trading market with the technology property rights exchange as the carrier. The transaction volume of the two equity exchanges in Shanghai exceeded 60 billion yuan in 2000, and is expected to reach about 80 billion yuan in 2001. They have become an important capital market in Shanghai.

At present, these two property rights exchanges have formed operating procedures and operating specifications for the listing, trading, and authentication of intangible asset property rights trading objects. Shanghai’s property rights market for intangible assets has been included in the legal track.

Intangible asset property rights market entities and legal status

Intangible asset property rights owners (legal persons and natural persons) are the entities in the property rights market. This has gradually become clear after the implementation of the strategy of “rejuvenating the country through science and education”. In the past, the traditional subjects were corporate legal persons, and they were all state-owned or collectively owned public-owned corporate legal persons, that is, the subjects were unified, and the individual creators of intellectual achievements of intangible assets, that is, natural persons, were excluded from market subjects. Since 1999, central and local laws and regulations have explicitly abolished ownership restrictions. Not only corporate legal persons, but also natural persons (individuals) can apply for scientific and technological achievement transformation projects. When a natural person applies for a project company, the results can be invested as intangible assets. As a result, a large number of private technology companies emerged and developed rapidly. At the same time, foreign-invested enterprises registered in Shanghai are encouraged to develop secondary innovative products. This diversity of intangible asset property rights entities and ownership diversification has unprecedentedly expanded and activated the intangible asset property rights market, creating a market environment for integrating with the international market.

Revolving around the main body of the intangible assets property rights market, Shanghai's technology property rights market for intangible assets has formed a "recognition system" for high-tech achievement projects - the establishment of "risk funds" for the transformation of high-tech achievements - the establishment of "risk funds" for the transformation of high-tech achievements. The operation system of "Service as Heart" provides market entities with supporting services such as confirming the technical level of transaction objects, market prospects, project risks, and transaction establishment, industrial and commercial registration, tax registration, policy and legal consultation, etc. when entering the market.

Intangible asset property rights market objects and legal protection

There is a gradual development process for intangible asset property rights objects to enter the technology property rights trading market: at the beginning of the reform and opening up in the 1980s, land use rights, Specifiable intangible assets such as patent rights, proprietary technologies, copyrights, and trademark rights, as well as non-specifiable intangible assets such as goodwill, entered the capital market for flow and combination; in the 1990s, with the implementation of the strategies of "rejuvenating the country through science and education" and "rejuvenating the city through science and education" At the turn of the century, the challenges and opportunities of the technological revolution that were about to join the "WTO" have accelerated the establishment of a market-oriented, enterprise-centered, high-tech intangible asset achievement transformation mechanism that combines industry, academia and research, and accelerated the transformation and transformation of high-tech achievements. The industrialization process realizes the transformation of the way in which high-tech intangible assets promote economic growth. Shanghai has gradually increased investment in science and technology. In 2000, the investment in the largest science and technology project (integrated circuit design industrialization base) exceeded 100 million yuan. As the leader of the contemporary technological revolution, the information industry's contribution to Shanghai's economic growth continues to increase. It was 7-8% in 1998 and increased sharply to 11.1% in 1999. In 2000, Shanghai's information industry became an enterprise with an annual output value of over 100 billion yuan. Leading enterprises.

With the development of high technology in depth and breadth, it is increasingly difficult to summarize intangible asset objects using the traditional two categories of "creation" and "marking".

For example, trade secrets are classified as “indicative” in the Paris Convention and “creative” in the Tokyo Convention. Another example is the Database Protection Directive, which is also in a dilemma. Because these two general categories cannot cover the diversity of "intellectual creation" of the nature of intangible assets, the diversity of intangible asset categories and the intersection of knowledge disciplines are determined. At the same time, this also brings new problems to the legal protection of intellectual property rights for intangible assets, including the expansion of the scope of protection. The legal protection of its object is subject to two forms of legal protection, namely definite and non-definable, according to its classification of definable and unspecifiable. Create a legal protection environment for the market optimization combination of domestic and foreign high-tech intangible asset resources after joining the "WTO".

Legal status and legal responsibilities of evaluation agencies in the intangible asset property rights market

Intangible asset evaluation agencies have important economic and legal roles in protecting the rights and interests of public asset property rights subjects and regulating the transaction operations of the property rights market. The status and role are mainly as follows:

First, the value of intangible assets is objectively and fairly determined through asset evaluation. This is the basic management work of the enterprise, the reference price for determining the enterprise's technology property rights transactions, and an important assessment basis for the enterprise to maintain and increase the value of the assets of asset operators.

The second is to clarify the property rights of intangible assets of technology enterprises through asset evaluation. This protects the legitimate rights and interests of intangible assets, helps accelerate the incubation of technology enterprises, and gives full 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 has shown that the non-evaluation, omission, under-evaluation and mis-evaluation of intangible assets when the equity entities of public assets change are important channels for the loss of public assets. It is currently highlighted in three aspects: first, the use of agreement instead of appraisal is very different from the actual appraisal price, and there are many contradictions lurking in the definition of property rights, asset division, and the secret loss of public assets; second, during the restructuring of public-owned enterprises, the operation of Investors and producers are driven by the interests of equity participation, and non-evaluation, omission of evaluation, and low evaluation often occur; thirdly, state-owned and collectively-owned enterprises do not evaluate, underestimate, or confirm agreements, and they continue to be prohibited, and they also argue plausibly. State-owned and state-owned, collective and collective, the loss and inflow of intangible assets are balanced. There is no loss of assets, so why bother with asset evaluation.

The fourth is to use asset evaluation to effectively curb corruption in power-for-money transactions. This is also an important link in strengthening the construction of modern enterprise systems. Practice has proved that in addition to misunderstandings, the phenomenon of non-evaluation, omission of evaluation, and low evaluation of intangible assets also exists in the corruption phenomenon of power-for-money transactions that cannot be ignored. From this perspective, this is also a measure for the construction of spiritual civilization in the modern enterprise system.

In order to clarify the role and legal responsibilities of intangible assets evaluation, we must also fully understand the particularity of intangible assets evaluation, which will help standardize the operating procedures of intangible assets evaluation, correctly select the evaluation method, and thus play the role of the evaluation agency correctly. It is very beneficial to assume corresponding legal responsibilities. There are three particularities in the evaluation of intangible assets:

The first is to define and identify the authenticity of intangible assets. Different from tangible assets, the evaluation of intangible assets first determines the ownership based on the legality of the property rights of the intangible assets and the benefits of the property rights of the intangible assets. That is, the basic work is more detailed and solid than the evaluation of tangible assets. Correspondingly The legal responsibilities are very clear.

The second is the poor comparability of intangible asset evaluation caused by the single and non-repetitive nature of intangible assets. This is determined by the particularity of the production and reproduction process of intangible assets. The production cost of the same intangible asset and the socially necessary labor consumed vary greatly. In addition, the diversification of technical subjects, the sharing of technology, and the multi-layered transaction prices achieved during the transfer process of intangible assets all prove the lack of comparability. , the applicability of using the current market price method to select four or five reference objects to evaluate intangible assets is very small. Technology-type intangible assets are represented by high-tech innovative enterprises, and the income method is mainly used to evaluate intangible assets. Correctly select intangible asset valuation methods and assess fair market prices, thereby assuming objective and fair legal responsibilities.

The third is the dynamic nature of intangible asset evaluation brought about by the rapid development of science and technology and fierce market competition. This is also another important issue in assuming fair and objective legal responsibility for intangible asset evaluation.

Due to the accelerated technology update cycle (generally shortened to about 5 years) and the increase in substitutes, intangible assets may even lose commercial value in the short term, and changes in social, economic, legal and other environments also require assessment from a dynamic perspective.

Legal principles and methods for identification of property rights and interests in intangible assets

Compared with property rights and interests of tangible assets, when grasping the legal principles and methods for identification of property rights and interests of intangible assets, special attention should be paid to the following: Five factors:

--Cost. Involves original development costs and opportunity costs. Intangible assets are the results (products) of intellectual creative activities. The formation process is a single and unique individual production with great differences. Its materialized labor is comparable and easy to measure. Living labor cannot use unified socially necessary labor time to measure its value. The difference between cost and value There is no absolute positive or negative correlation between intangible assets development costs. In view of the particularity of living labor in the development cost of intangible assets, basic research, applied research, risk, accumulation, creative labor compensation and other related cost sharing of development must be comprehensively considered. The opportunity cost issue is mainly the input-output rate of return affected by the technology monopoly rate and market share that companies purchasing intangible assets should consider.

--Benefits. It involves the unification of economic, social and ecological benefits. Intangible assets, such as certain high-tech achievements in the environmental protection industry, not only have significant economic benefits, but also have significant social and ecological benefits. When determining the level of assessment value, the comprehensive economic, social and ecological benefits should be used as the standard. In particular, we must pay attention to the evaluation of intangible assets with low economic benefits but high social and ecological benefits. The social and ecological benefits of environmental issues should be placed in an important position, and the weight should be expanded to become the main positive correlation factor in the assessment value. Vice versa. considered as a negative correlation factor.

--Period. It involves the four stages of market introduction, growth, maturity and decline of technology in the life cycle of intangible assets. The four phases at different stages have different advancedness and profitability, 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 the technology, the length of which is positively correlated with the evaluation value; second, correctly judge the stage at which the technology is evaluated and the corresponding risks. .

--Term. The legal protection period and technology life cycle of the legal environment involving the use of the intangible asset technology. The longer these two periods are, the higher the evaluation value is, and vice versa.

--Program. The process involving the evaluation of intangible assets can be summarized as "five determinations": identification of ownership type; identification of remaining economic life (usable life); determination of cost and profitability; evaluation methods (cost method, market price method, income method) selection.

Property rights transaction policy and legal environment for intangible assets

At the turn of the century, the country successively promulgated the "Science and Technology Progress Law of the People's Republic of China" and the "Law of the People's Republic of China on Science and Technology Progress". *The Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements", "Several Provisions on Promoting the Transformation of Scientific and Technological Achievements" and other laws, regulations and rules that encourage the development of high technology. Beijing's "Zhongguancun Regulations" and the Shanghai Municipal People's Government have successively issued "Several Provisions of Shanghai to Promote the Transformation of High-tech Achievements", "Shanghai Property Rights Transaction Management Measures", as well as local regulations on property rights transfer, trading, management and supervision. Laws and regulations have created a trinity environment of technology, capital and market, promoting the industrialization, capitalization, standardization and institutionalization of market operations for the transformation of intangible assets property rights achievements:

First, the environment of policy support . Special support will be given to projects and products with independent intellectual property rights. The registered capital of recognized high-tech enterprises can be provided step by step. High-tech intangible assets can participate in investment, and the value of their results can account for more than 20% of the registered capital, and can reach a maximum of 35% ( The agreement can also be increased to 51%).

The second is an environment with diverse subjects. Encourage technical elements to participate in the allocation, support scientific and technological personnel to work part-time or leave their posts for scientific and technological transformation, and form a diversified body of intellectual property rights and interests in the transformation of intangible assets.

The third is to optimize the talent environment that promotes the transformation of intangible asset results.

Establish talent development funds to support outstanding talents; scientific and technological personnel who transform intangible asset achievements from other provinces and cities can be supported by Shanghai household registration and are exempted from urban construction fees; outstanding intangible asset project transformation personnel can be assessed for professional and technical professional qualifications.

The nature and particularity of the legal relationship in property rights market transactions of intangible assets

Same as the property rights transactions of tangible assets, the property rights transactions of intangible assets use the asset appraisal price as the reference price, that is, As the "central axis" of the transaction price, the transaction price of the transferor and the transferee fluctuates up and down the "central axis" according to market supply and demand, and the transaction is completed at the market price in the form of auction as the main bidding method. This is the main clause of the subject matter value of the rights and obligations of both the transferor and the transferee in the text of the transaction contract. This is sex. The property rights transaction of intangible assets has its inherent particularity, that is, two aspects need to be paid attention to: First, the technical content and monopoly degree of the intangible assets being evaluated. That is, the technology content, the length of the life cycle, and which stage of the cycle it is in, which determines the level of assessment, the conditions for transfer, and the corresponding transaction method. In June 2000, Shanghai's first intangible assets (high-tech) property rights transaction auction was held. Six targets had a total starting price of 120 million yuan. Only one of them was auctioned for 100,000 yuan, and the remaining two options were "reserved." Three bids were “lost” without transaction. The sound of the hammer is so rare, which fully demonstrates that the high risk and difficulty of intangible asset property rights transactions stem from the difficulty in determining the content of technological achievements, the life span of the technological cycle and market share. The auction method corresponding to this should be different from the physical form. For example, the preview period should be long, the bidder must have a basic understanding of special commodities with scientific and technological achievements, and the bidding methods should also be innovative and diverse. The second is the choice of price payment method. For the transfer of technology-type intangible assets, not many adopt a one-time buyout payment method. Most of them adopt a commission-based pricing method, either based on output or price or profit commission. Both the transferor and the transferee not only enjoy the benefits, but also enjoy the benefits. Take risks. These two links involve the main terms of the rights and obligations of both parties in the transaction contract text, such as the value of the subject matter and the method of payment.

Adjustment and legal framework of the Intangible Assets Property Rights and Property Rights Market Protection Law Adjustments to the Intangible Assets Property Rights (Intellectual Property) Law: First, the extension of the scope of protection. With the development of the knowledge economy, high and new technologies such as biotechnology, the Internet, computer software, satellite broadcasting, and genetically modified engineering are constantly emerging. This not only involves the expansion of the scope of intellectual property protection, proposing new areas and corresponding protection methods for patent law, trademark law, and copyright law; it also involves the adjustment and coordination of new conflicts, such as "gender" identification technology in biotechnology, The technology of "cloning" animal reproduction has triggered controversy in the field of ethics. The development of the Internet has challenged the current concept of copyright (such as the online music exchange of online music services, which has impacted the traditional copyright law), and even the registration of Internet domain names and Conflict with existing trademark rights, etc. The second is the change in the protection period. This is determined by the rapid development of the knowledge economy. Technology life cycles are shortened, and the protection periods of patents and copyrights need to be dynamically adjusted according to different industries. The third is to intensify the punishment of intellectual property crimes. Due to the intangible characteristics of intellectual property, a series of issues need to be discussed in combating intellectual property crimes, such as the concept of crime, object of crime, form of crime, and elements of crime. Correspondingly, the criminal law protection of intellectual property rights should be improved to make it more accurate. Intensify efforts to punish intellectual property crimes.

Legal framework of property rights market legislation: As my country’s property rights capital market, Shanghai has more than 7 years of practical experience in the intangible asset property rights market and tangible asset property rights market. Guangzhou, Shenzhen and other places have also accumulated a lot of experience. experience. As a property rights capital market, our country should urgently formulate the "People's Republic of China and Securities Law of the People's Republic of China" that regulates the stock market capital market, including intellectual property rights, to comply with the property rights. The market calls for standardizing the property rights market and bringing the property rights market, including the property rights of intangible assets, into the legal track. At the same time, many forms of capital markets, such as GEM, back-door and back-door mergers and acquisitions, mergers and acquisitions, leasing grafting, partnerships and spin-offs, joint ventures and cooperation, should also be integrated into a unified national property rights market system.

In particular, the entrepreneurial sector (China's second board market) has an inherent relationship with the intellectual property rights of intangible assets and the industrialization of intangible assets, and should be included in the property rights market.

The legal framework of the property rights market:

The first one: the legal regulation of property rights market macro-control

The second one: the legal regulation of property rights market management and market system

The third one: Property rights market rules and procedural law norms

The fourth one: Property rights market subjects and subject behavior law standards

The fifth one: Property rights market intermediary agency law standards

Item 6: Assets Appraisal Law Norms for the Property Rights Market

Item 7: Law Norms for Foreign Buying and Selling Enterprises in the Property Rights Market

Item 8: Information Industry Management Law Norms for the Property Rights Market

Item 9: Norms of the Property Rights Market Membership Management Law

Item 10: Norms of the Property Rights Market Economic Person Management Law

Item 11: Norms of the Property Rights Market Transaction Contract Management Law

Item 12: Other legal norms in the property rights market

Legislation to protect and promote property rights market transactions of intangible assets can be said to be imperative after my country joins the WTO. In line with this, a series of work including the adjustment of intangible asset property rights institutions (referring to the merger of patent, trademark, copyright and other institutions), the establishment of institutions within the public security and judicial system for intangible asset property rights, and the education, publicity and popularization of intangible asset property rights and laws, etc. It is urgent to increase the breadth and depth of promotion, and do a solid job in basic work for the legislation on property rights of intangible assets.