Law graduation thesis 5000 words 1 On the legal obstacles and problems of intellectual property financing guarantee.
I. Overview and Necessity of Intellectual Property Financing
Intellectual property financing is a financing method in which debtors and third parties pledge their legal intellectual property rights to make secured creditor's rights and obtain loans. The legal basis of China's intellectual property rights can be found in: Article 75, paragraph 3 of the Guarantee Law stipulates:? Property rights such as trademark exclusive right, patent right and copyright that can be transferred according to law can be pledged and signed, and the relevant registration of this door will take effect from the date of registration. ? Intellectual property pledge financing has been very common in developed countries in Europe and America, but it is still in its infancy in China. The outline of the national intellectual property strategy clearly points out that? Promote the intellectual property, commercialization and industrialization of independent innovation achievements, and guide enterprises to realize the market value of intellectual property rights through intellectual property rights transfer, licensing and pledge. ?
China's small and medium-sized scientific and technological enterprises have a large demand for financing, but their credit is low, tangible assets are few, and intangible assets are of little value, so they are not fully utilized. However, the negative impact of the traditional business philosophy of banks and intermediary financial institutions, the high risk and high depreciation of the future use fees of intellectual property rights have become obstacles and misunderstandings of their guarantees, and the relevant loopholes in the law have made the financing unable to be guaranteed. In China, SMEs own 65% of the total number of patents, 80% of new products, 60% of the value of the final products and services created and 53% of the total tax revenue paid. Therefore, there are many markets and opportunities for intellectual property financing. Strengthening intellectual property financing can improve the innovation ability and management ability of enterprises and reduce the burden on the government, which is in line with China's? Rejuvenate the country through science and education? Strategy, improve the overall external competitiveness and adaptability, is conducive to economic development and the enhancement of national innovation ability.
Second, China's existing legal provisions on intellectual property financing problems
(a) The legal norms of intellectual property rights are unclear and the definition of rights is too general.
Although China has relevant guarantee law, patent law, trademark law and copyright law, there are still some problems in the guarantee law:
Article 79 Where the property right in the trademark exclusive right, patent right or copyright that can be transferred according to law is pledged, the pledgor and the pledgee shall conclude a written contract and register the pledge with the competent 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 may not transfer or license others to use them, but they may be transferred or licensed to others with the consent of the pledger and the pledgee through consultation. The transfer fee and license fee obtained by the pledgor shall be paid off to the pledgee in advance or deposited in a third party agreed with the pledgee.
The regulations are too general to fully cover the complexity and risks of intangible assets such as intellectual property rights. However, there is no complete regulation on what kind of laws should be applied to the intersection of patents, trademarks and copyrights, and it is even more difficult to face complex problems in the event of pledge financing. Moreover, the scope of its norms is too narrow, and there is no right to trade secrets, trade names, new plant varieties, layout design of integrated circuits, and no special or collective legislation, which leads to a vacuum of many rights and controversial infringement. The connection between the Guarantee Law and the Property Law is also very poor. For example, Article 79 of the Guarantee Law stipulates that the intellectual property pledge contract is valid. The pledge contract shall take effect from the date of registration? Article 227 of the Property Law stipulates that if the exclusive right to use a registered trademark, patent right, copyright and other intellectual property rights are pledged, the parties concerned shall conclude a written contract. The pledge right shall be established when the relevant competent department handles the pledge registration. ? From a strict semantic point of view, with? Take effect? They are two concepts with completely different legal consequences, which contradict each other and are not conducive to the application of the law.
(B) the evaluation of intellectual property financing is not perfect
Intellectual property assets evaluation is the core and key of the whole financing guarantee. The content of intellectual property evaluation includes three aspects: the rights and restrictions involved, 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, inconsistent standards, inconsistent forms, lack of authority and stability, and lack of different types of evaluation, the uncertainty of evaluation is unscientific.
(C) immature transactions in the intellectual property market
Because the guaranteed value of intellectual property rights is mainly its future cash flow, intellectual property rights themselves are difficult to realize, and there is a greater possibility of risk and depreciation. However, the open market trading rules are not standardized, and its financing cost is high. Moreover, the timeliness of patents makes many patents may be on the verge of abandonment and reimbursement, and there is no unified standard for market transactions, which makes the trading order of intellectual property rights very chaotic and the risks rise. In addition, intellectual property rights are difficult to transform, or the conditions for transformation are very high. For example, patent rights are likely to rely on large machinery and equipment, which makes the efficiency of the transformation of results very low.
(D) Information asymmetry between SMEs and intellectual property financing banks
Due to the imperfect internal control system and information disclosure system of small and medium-sized scientific and technological enterprises, banks have little understanding and information about small and medium-sized scientific and technological enterprises, and their credit rating is very low. Many banks are afraid to lend to small and medium-sized enterprises, and lack relevant investigation and consultation. The communication and contact between the two sides are not close. In order to reduce risks, banks will raise the threshold and cost of financing, and make detailed and limited qualitative provisions on its liquidity and use, which greatly affects the loan enthusiasm of small and medium-sized enterprises.
(E) China's intellectual property registration system is chaotic.
The intellectual property registration procedure in China is very complicated and extremely difficult. There are dozens of departments to supervise, which has too much power and too high cost. Some guarantees are repeated, others are not repeated and are not allowed. Future property? And then what? A floating property? As collateral, it increases the difficulty and cost of registration. Moreover, different types of intellectual property rights, such as patents and trademarks, are all double pledges, and their processes and departments are difficult to operate. In addition, according to China's laws, there is no publicity mechanism when copyright is transferred or pledged due to transactions. Make the situation more complicated.
(6) The form of intellectual property guarantee is single.
For the timeliness and practicality of patent, patent pledge is not conducive to the use and upgrading of the whole patent, and its value is greatly limited. Moreover, the guarantee value of intellectual property collateral is not entirely based on the transfer of collateral, but more based on the expected cash flow of intellectual property; The guarantee value of intellectual property is closer to the mortgage value than the transfer value. Therefore, the pledge of intellectual property rights is problematic.
5000-word law graduation thesis 2 on the legal regulation of the recessive circulation of the right to use rural homestead
With the acceleration of urbanization in China, most of the new generation of migrant workers tend to buy houses in cities, so their homesteads and houses in rural areas are abandoned and even appear in some places? Hollow village? . As the basic livelihood guarantee for farmers, the function of rural homestead is gradually weakening, and the hidden circulation of the right to use rural homestead begins to appear in many places. It is necessary to put these hidden circulation behaviors under the regulation and adjustment of the law. For the purpose of maintaining transaction security, this paper puts forward legislative suggestions from three aspects: perfecting the registration system of rural homestead use right, establishing an effective institution to serve the circulation of rural homestead use right, and establishing the exit mechanism of rural homestead.
Paper Keywords rural homestead use right recessive circulation homestead registration homestead exit
The right to use rural homestead refers to the members of rural collective economic organizations? Have the right to occupy and use collectively-owned land according to law, and have the right to use the land to build houses and ancillary facilities according to law? . Property Law defines the right to use homestead as usufructuary right, which is a kind of usufructuary right. The purpose of China's real right legislation is changing from Roman law? Focus on everything? Germanic law? Take this as the center? Change, property rights also by? Attribution? Where to? Reuse? The direction of development, but compared with the ownership, the exercise of the right to use the homestead is still subject to many restrictions, and it is necessary to make concessions to the collective land ownership in many aspects. Land is the most basic means of production and subsistence. As a socialist country, we must ensure that all the land is publicly owned. On this premise, we can make full use of the rural homestead.
The Decision of the Central Committee on Several Major Issues of Comprehensively Deepening Reform (hereinafter referred to as the Decision) deliberated and adopted by the Third Plenary Session of the 18th CPC Central Committee. The "Decision" proposes to protect the usufructuary right of farmers' homestead, 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. Real estate integration? In principle, we should actively reform and explore the circulation of rural homestead. Before the reform of rural homestead use right circulation was comprehensively promoted, the invisible circulation of rural homestead use right actually existed. Common recessive circulation methods include transfer, lease, gift, mortgage, shareholding, inheritance and replacement. Due to the lack of legal regulation, hidden circulation mostly belongs to? Disputes over the black-box operation of the ownership of the right to use the homestead will damage the rights of all parties in the circulation and have great legal risks. This paper intends to discuss the legal regulation of the recessive circulation of the right to use rural homestead from three aspects.
First, move forward the legal regulation barrier and improve the registration system of rural homestead use right.
Publicizing public trust is one of the basic principles of property law. Property rights are like goals on a football field. If you want to score goals, you must clearly mark the position of the goal. Property right registration is a necessary means to realize charitable trust.
(A) the right to use the homestead registration is the premise of homestead circulation.
"Land Management Law of the People's Republic of China" stipulates? Homestead, private plots and private hills are collectively owned by farmers? That is, the ownership of homestead belongs to township collective, village collective or villagers' group. Qualified personnel can apply for the right to use the homestead and build houses and their ancillary facilities on the homestead. The original acquisition of the right to use rural residential land adopts the registration confrontation system, and the registration procedure is not a necessary condition for obtaining the usufructuary right, but it can confront the bona fide third party after registration. At present, China is carrying out the registration and certification of the right to use homestead, which has laid the foundation for further deepening the reform of rural land system. However, based on China's historical habits and rural reality, it is difficult to implement ownership confirmation registration. It is suggested to adopt the pilot experience of rural land reform in Guangdong, Anhui and other places, and only those who have completed the registration procedures of homestead ownership can be transferred, and the land use cannot be changed.
(two) the registration of implicit transfer of the right to use the homestead should be treated differently.
What are the changes in the right to use the homestead caused by hidden circulation? Wearing a legal coat? , to? Real estate integration? Conditional transfer or inheritance of principles. With the advancement of rural land system reform, hidden circulation will eventually get rid of the restrictions of the current legal system. The new legislation should treat the circulation of the right to use the homestead differently and make an appropriate choice between the registration effect and the registration confrontation. It is also worth learning from the existing laws to register the contracted management right of rural land. If the contracted management right of rural land is transferred by means of transfer or exchange, the registration confrontation system is adopted, but there is no provision for the transfer of other forms of contracted management right of rural land.
At present, the law stipulates that the right to use rural homestead cannot be transferred separately, but only with attachments from all over the country, and the transferee and transferor must be members of the same collective economic organization. According to the countryside? This feature of acquaintance society makes the transfer behavior within the collective economic organization naturally achieve the effect of publicity and public trust, and the transfer of homestead has to be registered against.
The gift and inheritance of the right to use rural residential land will cause changes in the subjects who enjoy the usufructuary right, so it is important to examine whether the above behaviors meet the substantive requirements. As the donation and inheritance belong to free acquisition, according to the provisions of the Property Law, the bona fide third party claims that the exercise of the right of confrontation should be based on the payment of consideration, and the donation and inheritance are not applicable to the bona fide acquisition system and do not enjoy the general right of confrontation. Therefore, when granting and inheriting the right to use rural homesteads, the doctrine of registration effectiveness should be applied to ensure the stability of legal relations.
The lease, mortgage and shareholding of the right to use rural residential land will not change the subject who enjoys the usufructuary right, and the registration of the above acts may not be stipulated in legislation. The parties involved in lease, guarantee and equity participation shall be rational persons, and the contractual validity of lease contract, guarantee contract and warrant is sufficient to ensure the transaction safety. Intermediary service institutions established one after another can also provide contract verification services to strengthen the effectiveness of contracts.
Second, broaden the perspective of legal regulation and establish an effective system to serve the transfer of the right to use rural residential land.
(a) the establishment of a special administrative agency unified registration of rural land use rights.
The Opinions of the Ministry of Land and Resources on Strengthening the Management of Rural Homestead stipulates that it is necessary to strengthen the registration and certification of rural homesteads, so that the registration and certification of homestead land can be made to households, and the contents are standardized and clear, so as to effectively safeguard the legitimate rights and interests of farmers. However, it is difficult to implement this provision in practice. There are many registration agencies and multiple registrations in China's real estate registration. Farmers are unwilling to register because of trouble, and individual registration agencies charge high registration fees for profit, which is also one of the reasons why it is difficult to promote the registration of homestead. Therefore, it is necessary to establish a special institution to register various land use rights in rural areas.
At present, there are many loopholes in the management of homestead use right. What is the main reason? The main body of collective land ownership in China is absent, and the land owners have failed to actively safeguard the legitimate rights and interests of their right to use? . Due to many problems left over from history, the registration of the right to use rural residential land can play the basic role of villagers' self-government institutions, and liaison officers can be selected in the self-government units to carry out legal knowledge publicity activities, and the township arrangement Commissioner is responsible for coordination. Strengthen the identity and role of homestead owners as managers through scientific staffing and institutional setup. Land and resources management departments of counties and cities and their dispatched offices carry out classified registration according to different modes of homestead circulation, gradually realize information sharing with financial institutions, civil affairs departments and industrial and commercial administrative departments, and fully guarantee transaction security.
(B) the establishment of market-oriented operation of rural land intermediary service institutions
Draw lessons from the successful experience of rural land contractual management right transfer, set up an intermediary institution with market operation, and provide services such as information release, price evaluation, contract verification, legal consultation and dispute mediation. Zhou Qiren, president of the National Development Research Institute of Peking University, suggested establishing a rural land trading market to provide services for all rural land circulation, including homestead. 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 single administrative land exchange to solve a large number of practical and professional problems in the process of homestead circulation, such as poor circulation information distribution channels, unprofessional land price evaluation, complicated transaction procedures for the parties, difficult to determine the proportion and method of land transfer payment after circulation, and lack of rights relief channels for the parties to the transaction.
Market-oriented intermediary service organizations came into being. As an intermediary, intermediary agencies provide professional services to all parties involved in the transfer of the right to use rural residential land, and charge commissions according to a certain proportion. The operation mode of urban real estate intermediary companies can be referenced, and professional institutions such as accounting firms and law firms can explore and study this kind of business. On the basis of exploring classified operation and sub-item operation, we will gradually establish comprehensive market operation institutions such as homestead agent, homestead evaluation company, homestead insurance company and homestead investment operation company.
Three, unified legal supervision caliber, the establishment of rural homestead exit mechanism
China's laws stipulate that rural homesteads should be followed? One household and one house? However, in principle, many farmers can obtain many homesteads based on inheriting or accepting gifts. More than one house? The phenomenon is more common. Some farmers even exceed the standard area to build houses, do not tear down the old and build new ones, or illegally occupy land to build houses without approval. According to the survey, there are only 375 households in Xialiu Village, Tielu Street, Lintong District, Xi 'an, Shaanxi Province, but there are as many as 500 homesteads, 96 idle homesteads, 56 of which are empty and empty, and more than 30% of households own multiple houses. This phenomenon is widespread throughout the country. With the acceleration of urbanization, the idle rate of rural homestead may rise further. It is only an expedient measure to acquiesce in the implicit transfer of the right to use rural residential land. Irregular transfer will lead to the decrease of the price of rural residential land, damage the interests of farmers and cause the loss of collective assets. To fundamentally standardize the recessive circulation of rural residential land, we should establish the withdrawal mechanism of rural residential land and improve the utilization rate of rural land.
According to different situations, there are two ways to quit rural homestead: free and paid. Due to the needs of public welfare construction, township (town) village public facilities construction, old village reconstruction, etc., the occupation of farmers' homestead does not involve farmers' subjective will, and it is a unilateral administrative act, and the compensation standards for agricultural land expropriation in various places are applicable, so I will not repeat them here.
(1) Free recovery of rural homestead use right
According to the Regulations on the Management of Rural Homestead, the situations in which the right to use rural homestead is recovered without compensation include: non-compliance? More than one house? Or exceeding the building standards; Construction has not started for two years since the date of approval of the building; Illegal transfer of homestead or house; (4) The author adds a situation that villagers change the land use without authorization after obtaining the right to use the homestead. In the first case, villagers should be encouraged to voluntarily withdraw, the illegally occupied homestead should be recovered free of charge, and the above-ground buildings and other ancillary facilities should be given appropriate compensation. Houses with an area exceeding the standard and some exceeding the standard are not included in the compensation. The latter three cases are reported to the people's government at the county level for approval, and the villagers' committee or village economic cooperative directly recovers the right to use the homestead without compensation.
(B) paid withdrawal of the right to use rural homestead
The premise of the paid withdrawal of the right to use rural residential land is to solve the problem of funding sources and establish a compensation fund for the withdrawal of rural residential land. However, the current situation in China is that most village collectives, as owners of collective land, have no relevant sources of funds. What should be the source of funds for the withdrawal of homestead from compensation fund? Who invests, who benefits, who benefits and who invests? In principle, on the basis of the national financial allocation, members of village-run economic and collective organizations are encouraged to join, and the income is distributed according to the fund share when the land income is realized.
In the market economy environment, farmers are rational people. If you want to voluntarily withdraw from the homestead that was obtained for free and the right to use it is indefinite, you should actively explore the incentive and compensation mechanism for the withdrawal of homestead, including formulating compensation standards that meet market conditions, expanding the scope of compensation, exploring the payment methods of compensation, and establishing a social security system that integrates urban and rural areas.
In addition to monetary compensation, Guangdong, Chongqing, Tianjin and other places have also begun to pilot? Homestead change? That is, farmers voluntarily exchange their homestead for a set of houses in small towns according to the prescribed replacement standards and move into small towns to live. This method of exchanging the right to use homestead for house ownership looks beautiful, but there are many practical problems. Due to the high cost of housing construction in small towns, this replacement must be carried out on a large scale and in a large area. When the collective members disagree, the interests of a few villagers may be difficult to protect. Moving into small towns also brings inconvenience to future agricultural production. In the rural areas dominated by traditional extensive farming, the homestead changes? This model is difficult to popularize.
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