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A brief discussion of intellectual property financing guarantees Legal obstacles and problems

1. Overview and necessity of intellectual property financing

Intellectual property financing is when debtors and third parties use their legal intellectual property rights to pledge to creditors. A financing method to realize the secured claims and obtain loans. Our country's legal basis for intellectual property rights can be found in: Article 75, Paragraph 3 of the "Security Law" stipulates: The property rights in the exclusive rights to trademarks, patents, and copyrights that can be transferred in accordance with the law can be pledged and contracts signed, and the relevant department registration Effective from registration. ?Intellectual property pledge financing is very common in developed countries in Europe and the United States, but it is in its infancy in my country. The "National Intellectual Property Strategy Outline" clearly states that it is necessary to ?promote the intellectual property, commercialization, and industrialization of independent innovation results, and guide enterprises to adopt knowledge Realize the market value of intellectual property rights through property rights transfer, licensing, pledge and other methods. ?

my country's technology-based small and medium-sized enterprises have large financing needs, but have low credit, few tangible assets, and intangible assets with low value and are not fully utilized. The business philosophy of banks and intermediary financial institutions is traditionally negative. As a result, the risk of future royalties for intellectual property rights is high, and the high depreciation has become an obstacle to its guarantee and misconceptions, and relevant loopholes in the law prevent financing from being guaranteed. In my country, the patents owned by small and medium-sized enterprises account for 65% of the total, new products account for 80%, the value of final products and services created account for 60% of the GDP (gross national product), and the taxes paid account for 53% of the total tax revenue. Therefore, there are many markets and opportunities for intellectual property financing. And strengthening the financing of intellectual property rights can improve the innovation and management capabilities of enterprises, reduce the burden on the government, and is in line with my country's strategy of "rejuvenating the country through science and education", improve the overall external competitiveness and adaptability, and is conducive to economic development and the country. Enhancement of innovation capabilities.

2. Problems in my country’s existing intellectual property financing laws and regulations

(1) The legal norms of intellectual property are unclear and the definition of rights is too general

my country Although there are relevant "Security Law", "Patent Law", "Trademark Law" and "Copyright Law", but for example, the "Security Law":

Article 79 in accordance with the law If transferable trademark exclusive rights, patent rights, or property rights in copyrights are pledged, the pledgor and the pledgee shall enter into a written contract and register the pledge with its management department. The pledge contract shall take effect from the date of registration.

Article 80 After the rights stipulated in Article 79 of this Law are pledged, the pledger shall not transfer or permit others to use them, but they may be transferred or used with the consent of the pledger and the pledgee through negotiation. Licensed to others. The transfer fees and license fees earned by the pledger shall be paid to the pledgee in advance for the guaranteed creditor's rights or deposited with a third party agreed with the pledgee.

The regulations are too general and cannot fully cover the complexity and risks of the operation of intangible assets such as intellectual property rights. However, there are no complete regulations on what kind of laws should be applied to cross-cutting issues between patents, trademarks, and copyrights, and it is even more confusing to face complex issues in pledge financing events. Moreover, the scope of its regulations is too narrow. It does not include trade secret rights, trade name rights, new plant variety rights and integrated circuit layout design rights. There is also no special or collective legislation, resulting in a vacuum of many rights and the occurrence of disputes and infringements. . There is also a poor connection between security law and property law. For example, Article 79 of the "Security Law" states: "The pledge contract takes effect from the date of registration", while Article 227 of the "Property Rights Law" stipulates: "The exclusive right to register a trademark, patent right, copyright If property rights in intellectual property rights such as copyrights are pledged, the parties shall enter into a written contract. The right to pledge is established when the relevant competent authorities handle the registration of pledge.

?Interpreted from a strict semantic perspective, "establishment" and "effectiveness" are two concepts with completely different legal consequences. They are contradictory to each other and are not conducive to the application of the law.

(2) The evaluation of intellectual property financing is imperfect

The asset evaluation of intellectual property is the core and key of the entire financing guarantee. The content of intellectual property evaluation includes: the rights included and restrictions, the value of intellectual property rights, and whether the laws for determining and protecting intellectual property rights are clear and standardized. However, due to the low level of evaluation in my country, the inconsistency of standards, the inconsistency of forms, and the lack of authority and stability, there is no The use of different types of assessments increases the risk of unscientific assessments and increases uncertainty.

(3) The market transaction of intellectual property is immature

Since the guaranteed value of intellectual property is mainly the cash flow generated by it in the future, it is difficult to realize the intellectual property itself. , the risk and possibility of devaluation are high, and the open market transaction rules are not standardized, and its financing costs are high. Furthermore, the timeliness of patents means that many patents may be on the verge of wastage and reimbursement, and there is no unified regulation of market transactions, making the transaction order of intellectual property very chaotic and increasing risks. In addition, intellectual property rights are difficult to transform, or the conditions for transformation are high. For example, patent rights are likely to rely on large machines and equipment, making the efficiency of achievement transformation very low.

(4) Information asymmetry between small and medium-sized enterprises and banks in intellectual property financing

Due to the imperfect internal control system and information disclosure system of technology-based small and medium-sized enterprises, banks have a negative attitude toward technology-based small and medium-sized enterprises. Small and medium-sized enterprises have little understanding and information, and their own credit rating is very low. Many banks are afraid to lend money to small and medium-sized enterprises, and there is a lack of relevant investigation and consultation. The communication and contact between the two parties are not close. In order to reduce risks, banks will increase the threshold and fees for financing, and impose detailed and restrictive regulations on their liquidity and use, which greatly affects the enthusiasm of small and medium-sized enterprises for loans.

(5) my country’s intellectual property registration system is chaotic

my country’s intellectual property registration procedures are very complex and extremely difficult. There are dozens of departments for supervision, and the power is excessive. Large, the cost is too high, some guarantees are duplicated, and some guarantees are not, and "future property" and "property with a floating quantity" are not allowed to be used as collateral, making registration more difficult and costly. In addition, when different types of intellectual property rights, such as patents and trademarks, are double pledged, the processes and departments are more difficult to operate. In addition, according to our country's legal provisions, when the copyright is transferred or pledged due to a transaction, there is a lack of publicity mechanism. Making the situation more complicated.

(6) The form of guarantee for intellectual property rights is single.

For patents with strong timeliness and practicality, the pledge of patents is not conducive to the use of the entire patent and the protection of the patent. Upgrading, its value is greatly limited, and the guaranteed value of intellectual property collateral is not entirely based on the transfer of the collateral, but more based on the expected cash flow of the intellectual property; the guaranteed value of intellectual property is closer to the mortgage value, rather than the transfer value. Therefore, intellectual property pledge is questionable. Law Graduation Thesis 5000 words Part 2

A brief discussion on the legal regulation of the implicit transfer of rural homestead use rights

Abstract my country’s urbanization process continues to accelerate, and most of the new generation of migrant workers tend to work in When people buy houses in cities, their homesteads and their houses in rural areas are abandoned, and "hollow villages" even appear in some places. The function of rural homesteads as a basic livelihood guarantee for farmers has gradually weakened, and hidden transfers of homestead use rights have begun to occur in many places. It is necessary to bring these hidden transfer behaviors under legal regulations and adjustments. With the purpose of maintaining transaction security, this article puts forward legislative suggestions from three aspects: improving the registration system for rural homestead use rights, establishing effective institutions to serve the transfer of rural homestead use rights, and establishing a rural homestead exit mechanism.

Keywords of the paper: Hidden transfer of rural homestead use rights, homestead registration, homestead withdrawal

Rural homestead use rights refer to members of rural collective economic organizations? The rights to collective ownership in accordance with the law The person has the right to occupy and use the land, and has the right to use the land to build residences and ancillary facilities in accordance with the law. The "Property Rights Law" defines the right to use homestead land as usufruct rights, which is an other property right. The legislative purpose of property rights in our country is undergoing a transformation from Roman law, which is ownership-centered, to German law, which is utilization-centered. Property rights are also developing from "re-ownership" to "re-use", but this is different from Compared with ownership, the exercise of homestead use rights is still subject to many restrictions and requires concessions to collective land ownership in many aspects. Land is the most basic means of production and livelihood. As a socialist country, it must ensure that all land is under public ownership, and under this premise, rural homestead land can be fully utilized.

The "Decision of the Central Committee of the Communist Party of China on Several Major Issues Concerning Comprehensively Deepening Reform" (hereinafter referred to as the "Decision") was reviewed and approved by the Third Plenary Session of the 18th CPC Central Committee. The "Decision" proposes to protect the usufructuary rights of farmers' homesteads, reform and improve the rural homestead system, prudently and steadily promote the mortgage, guarantee, and transfer of farmers' housing property rights, and explore channels for farmers to increase their property income. In order to implement the spirit of the Third Plenary Session of the 18th CPC Central Committee, the rural housing market will be gradually liberalized. Based on the principle of "integration of housing and land", it is necessary to actively reform and explore the transfer of rural homestead sites. Before comprehensively promoting the reform of the transfer of rural homestead use rights, the invisible transfer of homestead use rights has already existed. Common implicit transfer methods include transfer, leasing, gift, mortgage, shareholding, inheritance and replacement, etc. Due to the lack of legal regulation, most of the hidden transfers are "secret operations". Disputes over the ownership of homestead use rights will cause damage to the rights of all parties to the transfer, which poses greater legal risks. This article intends to briefly comment on the legal regulations on the implicit transfer of rural homestead use rights from three aspects.

1. Move legal regulations forward and improve the registration system for rural homestead use rights

Publicity and trust are one of the basic principles of property law. Property rights are like goals on a football field. If you want to score a goal, you must clearly indicate the location of the goal. Property rights registration is a necessary means to achieve publicity and credibility.

(1) Confirmation and registration of homestead use rights is a prerequisite for the transfer of homestead land

The "Land Management Law of the People's Republic of China" stipulates that? Homestead land and private land, Ziliushan belongs to the collective ownership of farmers, that is, the ownership of homestead land belongs to township collectives, village collectives or villager groups. Qualified persons may apply for the right to use homestead land and build residences and ancillary facilities on the homestead land. The original acquisition of rural homestead use rights adopts the registration confrontation principle. Registration procedures are not a necessary condition for obtaining the usufruct rights, but registration can be used against bona fide third parties. At present, our country is carrying out the confirmation, registration and certification of homestead use rights, laying a property rights foundation for further deepening the reform of the rural land system. However, based on my country's historical habits and rural realities, it is difficult to implement the work of confirming rights and registration. It is recommended to adopt the experience of rural land reform pilots in Guangdong, Anhui and other places. Only those who have completed the registration procedures for homestead rights can be transferred, and the land use must not be changed.

(2) The registration of the implicit transfer of homestead use rights should be treated differently

Changes in homestead use rights caused by implicit transfers are usually disguised as legal, in order to protect the house. Land integration? It is a conditional transfer or inheritance in principle. With the advancement of rural land system reform, implicit transfer will eventually put aside the restrictions of the current legal system. New legislation should treat the transfer of homestead use rights differently and make an appropriate choice between registration effectivenessism and registration adversarialism. The current law is also worth learning from regarding the confirmation and registration of rural land contract management rights. Where rural land contract management rights are transferred by transfer or exchange, registration adversarialism is adopted, but there are no provisions for other forms of transfer of rural land contract management rights. .

The current law stipulates that the right to use rural homestead land cannot be transferred separately, but can only be transferred together with the attachments on the ground, and the transferee and transferor must be members of the same collective economic organization. According to the characteristics of rural acquaintance society, the transfer behavior within the collective economic organization can naturally achieve the effect of publicity and public trust, and the transfer of homesteads must implement registration confrontationism.

The donation and inheritance of the right to use rural homestead land will cause changes in the subject who enjoys the usufruct rights. It should be focused on whether the above behavior meets the substantive requirements. Since gifts and inheritances are gratuitous acquisitions, according to the provisions of the Property Rights Law, a bona fide third party claiming to exercise the right of confrontation must pay consideration as a premise. Gifts and inheritances are not subject to the bona fide acquisition system and do not enjoy the general right of confrontation. Therefore, when donating and inheriting the right to use rural homestead land, registration validity doctrine should be applied to ensure the stability of the legal relationship.

The leasing, mortgage and shareholding of the right to use rural homestead land will not cause changes in the entities enjoying the usufruct rights, and the legislation does not require the registration of the above-mentioned activities. All parties involved in leasing, guaranteeing, and investing in shares must be reasonable persons, and the contractual validity of the leasing contract, guarantee contract, and stock warrants are sufficient to ensure the safety of the transaction. The intermediary service agencies established one after another can also provide contract authentication services to strengthen the effectiveness of contracts.

2. Broaden the perspective of legal regulations and establish effective institutions to serve the transfer of rural homestead use rights

(1) Establish a specialized administrative agency to uniformly register rural land use rights

The Ministry of Land and Resources’ “Opinions on Strengthening the Management of Rural Homestead Lands” stipulates that the registration and issuance of rural homestead land certificates must be strengthened so that homestead land registration and certificates are issued to each household, with clear and standardized content, and effective protection of farmers’ legitimate rights and interests. However, this provision is difficult to implement in practice. There are multiple registration agencies and multiple registrations for real estate registration in my country. Farmers are reluctant to register because they find it troublesome, and individual registration agencies charge high registration fees for profit, which is also one of the reasons why homestead registration is difficult to advance. Therefore, it is necessary to establish specialized agencies to uniformly register various types of rural land use rights.

There are many loopholes in the current management of homestead use rights. The main reason is that the main body of collective land ownership in our country is empty, and land owners fail to actively safeguard the legitimate rights and interests of use rights holders. Due to the many problems left over from history, the confirmation and registration of rural homestead use rights can play a fundamental role in villagers' self-governance institutions. They select liaisons in self-governing units and carry out publicity and popularization activities of legal knowledge. Each township arranges specialists to be responsible for coordination work. Strengthen the identity and functions of homestead owners as managers through scientific staffing and institutional setup. The land and resources management departments of each county and city and their dispatched agencies carry out classified registration according to the different methods of homestead transfer, and gradually realize the sharing of information with financial institutions, civil affairs departments, and industrial and commercial administration departments to ensure transaction security in an all-round way.

(2) Establishing a market-oriented rural land intermediary service agency

Drawing on the successful experience in the transfer of rural land contract management rights, establish a market-oriented intermediary agency to provide information release, Price evaluation, contract authentication, legal consultation and dispute mediation services. Zhou Qiren, dean of the National School of Development at Peking University, suggested establishing a rural land transaction market to provide services for all rural land transfers, including homesteads. At present, Chongqing, Chengdu, and Wuhan are all exploring the establishment of rural land trading markets, but they are all in the pilot stage. Moreover, it is difficult for a land exchange with a single administrative operation to solve a large number of practical and professional problems in the process of homestead transfer, such as unblocked channels for releasing transfer information, unprofessional land price assessment, complicated transaction procedures that are difficult for parties to deal with, and the price of land after transfer. It is difficult to determine the distribution ratio and method, and there is a lack of remedies for the rights of the parties to the transaction.

Market-oriented intermediary service agencies have emerged. Intermediaries act as intermediaries to provide professional services to all parties involved in the transfer of rural homestead use rights, and charge commissions according to a certain proportion. The operation model of urban real estate intermediaries can be used as a reference, and professional institutions such as accounting firms and law firms can explore and study this type of business.

On the basis of exploring classified businesses and sub-operations, comprehensive market operation organizations are gradually established, such as homestead entrusting agencies, homestead appraisal companies, homestead insurance companies, homestead investment and management companies, etc.

3. Unify the scope of legal regulations and establish an exit mechanism for rural homesteads

Our country’s laws stipulate that rural homesteads follow the principle of “one household, one home”. However, many farmers can withdraw from rural homesteads based on inheritance or It is common for people to obtain multiple homesteads due to receiving gifts or other reasons. "One household has multiple homes". Some farmers even build houses beyond the standard area, build new houses without demolishing old ones, or illegally build houses on land without approval. According to the survey, Liu Village, under the jurisdiction of Tielu Street, Lintong District, Xi'an City, Shaanxi Province, has only 375 farmers, but there are as many as 500 homesteads and 96 idle homesteads. Among them, 56 are empty and empty, and more than 30 Farmers have one household with multiple houses. This phenomenon is common across the country, and with the acceleration of urbanization, the idle rate of rural homesteads is likely to rise further. Tacitly allowing the implicit transfer of rural homestead use rights is only a stop-gap measure, and the irregularity of the implicit transfer will lead to lower homestead prices, harm the interests of farmers, and cause the loss of collective assets. To fundamentally regulate the hidden transfer of homestead land, an exit mechanism for rural homestead land should be established to improve rural land utilization.

According to different circumstances, the withdrawal of rural homestead land can be done in two ways: free of charge and paid. The occupation of farmers' homesteads for the purpose of public welfare undertakings, township (town) village public facilities construction and old village reconstruction does not involve the farmers' subjective wishes and is a unilateral administrative act. The compensation standards for agricultural land expropriation in various places are applicable. Here No more details.

(1) Free withdrawal of rural homestead use rights

The "Rural Homestead Management Regulations" stipulates that the free withdrawal of rural homestead use rights includes: Irregularities? There are multiple houses per household or houses built beyond the standard; Construction has not started for two years since the date of approval for house construction; Homestead land or housing is illegally transferred; ④ The author has added a situation where villagers after obtaining the right to use the homestead Changing land use without authorization. In the first case, villagers should be encouraged to voluntarily quit, and the illegally occupied homestead sites should be recovered for free, and appropriate compensation should be given to the above-ground buildings and other ancillary facilities. Compensation will not be included if the area exceeds the standard and part of the house that exceeds the standard is lost. The latter three situations must be reported to the county-level people's government for approval, and the village committee or village economic cooperative will directly take back the right to use the homestead free of charge.

(2) Paid exit of rural homestead use rights

The prerequisite for paid exit of rural homestead use rights is to solve the problem of funding sources and establish a homestead exit compensation fund. However, the current situation in our country is that most village collectives as collective land owners have no relevant sources of funds. The source of funds for the homestead exit compensation fund should be based on the principle of "who invests, who benefits, who benefits, and who invests", based on national financial allocations, and encourages members of village-run economic and collective organizations to join. When land benefits are realized, , allocate income according to fund shares.

In a market economy environment, farmers are all rational people. If they are to voluntarily withdraw from the homestead land that they originally obtained free of charge and have unlimited use rights, we should actively explore the homestead exit incentive and compensation mechanism, including formulating Compensation standards in line with market conditions, expanding the scope of compensation, exploring ways to pay compensation and establishing an integrated urban and rural social security system, etc.

In addition to monetary compensation, Guangdong, Chongqing, Tianjin and other places have begun pilot projects of "homestead exchange", that is, farmers voluntarily exchange their homesteads for a house in a small town in accordance with the prescribed exchange standards. Buy a house and move to a small town. This method of exchanging homestead use rights for house ownership may seem wonderful, but it has many practical problems. Due to the high cost of residential construction in small towns, this replacement must be carried out on a large scale and in a large area. When collective members disagree with each other, the interests of a small number of villagers may be difficult to protect. Moving to small towns also brings inconvenience to future agricultural production. In rural areas where traditional extensive farming is the mainstay, the "homestead-for-housing" model is difficult to promote.

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