Law of China on Promoting the Transformation of Scientific and Technological Achievements (2015 Amendment)

 2018-05-10  72


Law of China on Promoting the Transformation of Scientific and Technological Achievements (2015 Amendment)


· Document Number:Order No. 32 of the President

· Area of Law: Science and Technology

· Level of Authority: Laws

· Date issued:08-29-2015

· Effective Date:10-01-1996

· Status: Effective

· Issuing Authority: Standing Committee of the National People's Congress

 

Law of China on Promoting the Transformation of Scientific and Technological Achievements
(Adopted at the 19th Session of the Standing Committee of the Eighth National People's Congress on May 15, 1996, and amended according to the Decision on Amending the Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements as adopted at the 16th Session of the Standing Committee of the Twelfth National People's Congress on August 29, 2015)
Contents
Chapter I General Provisions
Chapter II Organization of Implementation
Chapter III Guarantee Measures
Chapter IV Technological Rights and Interests
Chapter V Legal Liability
Chapter VI Supplementary Provisions
Chapter I General Provisions
Article 1 This Law is developed for purposes of promoting the transformation of scientific and technological achievements into real productive forces, standardizing such transformation, accelerating scientific and technological progress, and promoting economic and social development.
Article 2 For the purpose of this law, “scientific and technological achievements” means the applicable achievements made through scientific research and technological development. “Job-related scientific and technological achievements” means the scientific and technological achievements made through completing the work tasks of research and development institutions, institutions of higher education, enterprises, and other entities or mainly utilizing the material and technical conditions of the aforesaid entities.
For the purpose of this Law, “transformation of scientific and technological achievements” means the entire process of the follow-up tests, development, application, and promotion of the scientific and technological achievements, through to the final creation of new technologies, new techniques, new materials, and new products, as well as development of new industries -- all for the purpose of enhancing the level of productive forces.
Article 3 The transformation of scientific and technological achievements shall be conducive to accelerating the implementation of innovation-driven development strategies, promoting the combination of technology and economy, improving economic returns and social benefits, protecting the environment, making rational use of resources, promoting economic construction and social development, and safeguarding national security.
In the transformation of scientific and technological achievements, the market discipline shall be respected, the role of enterprises as main players shall be brought into play, the principles of free will, mutual benefit, fairness and good faith shall be followed, and interests shall be enjoyed and risks shall be borne in accordance with the provisions of laws and regulations and the contracts. Intellectual property rights involved in the transformation of scientific and technological achievements shall be protected by law.
In the transformation of scientific and technological achievements, laws and regulations shall be observed, state interests shall be safeguarded, and no public interests or lawful interests of others shall be damaged.
Article 4 The state shall reasonably arrange financial funds and direct investment of social funds for the transformation of scientific and technological achievements, to promote diversified capital investment in the transformation of scientific and technological achievements.
Article 5 The State Council and local people's governments at all levels shall intensify synergy of policies on science and technology, public finance, investment, tax, talents, industry, finance, government purchase, and military and civilian integration, among others, to create a favorable environment for the transformation of scientific and technological achievements.
Local people's governments at all levels may, under the principles specified herein and in light of actual conditions, adopt measures that are more conducive to promoting the transformation of scientific and technological achievements.
Article 6 The state shall encourage the implementation of scientific and technological achievements firstly in China. Chinese entities or individuals that assign scientific and technological achievements to overseas organizations or individuals or license them to implement the scientific and technological achievements shall comply with the relevant laws and administrative regulations, and the relevant provisions of the state.
Article 7 For national security, national interests and major public interests, the state may organize the implementation of or license others to implement relevant scientific and technological achievements according to the law.
Article 8 The administrative department of science and technology, the comprehensive economic administrative department, and other relevant administrative departments under the State Council shall, within their functions and responsibilities as prescribed by the State Council, administer, guide and coordinate the work of transforming scientific and technological achievements.
The local people's governments at all levels shall be responsible for administering, guiding and coordinating the work of transforming scientific and technological achievements within their respective administrative regions.
Chapter II Organization of Implementation
Article 9 The State Council and the local people's governments at all levels shall incorporate the transformation of scientific and technological achievements into their national economic and social development plans, and organize and coordinate the transformation of the relevant scientific and technological achievements.
Article 10 In utilizing financial funds to establish applicable science and technology projects and other relevant science and technology projects, relevant administrative departments and regulatory authorities shall improve the scientific research organization and management style, and, when developing relevant science and technology plans or planning, and developing project guidelines, solicit opinions of relevant industries and enterprises; and in organizing the implementation of applicable science and technology projects, they shall specify the obligations of project undertakers in transforming scientific and technological achievements, strengthen intellectual property rights management, and regard transformation of scientific and technological achievements, as well as creation and utilization of intellectual property rights as an important content and basis for project initiation and acceptance.
Article 11 The state shall establish and improve the scientific and technological reporting rules and the scientific and technological achievements information systems, announce the implementation of science and technology projects, scientific and technological achievements, and relevant intellectual property right information to the public, and provide scientific and technological achievements information inquiry, screening, and other public services. No state secrets or trade secrets shall be disclosed in the announcement of relevant information. For the information not to be announced, relevant departments shall notify relevant science and technology project undertakers in a timely manner.
Undertakers of science and technology projects established with financial funds shall, in accordance with the relevant provisions, submit relevant scientific and technical reports in a timely manner, and summarize and submit the scientific and technological achievements and relevant intellectual property right information to the information system of scientific and technological achievements.
The state shall encourage undertakers of science and technology projects not established with financial funds to submit relevant scientific and technological reports, and summarize and submit the scientific and technological achievements and relevant intellectual property right information to the information system of scientific and technological achievements. Departments of the people's governments at or above the county level in charge of relevant work shall provide convenience thereto.
Article 12 The state shall, through government purchase, subsidies for research and development, issuance of catalogue of industrial technology guidance, demonstration and popularization, and other ways, provide support to the following projects of transformation of scientific and technological achievements:
(1) Projects that are able to significantly raise the industrial and technical level, increase economic results, or form new industries that are able to promote sound social and economic development.
(2) Projects that are able to significantly improve national security ability and public safety level.
(3) Projects that are able to rationally develop and utilize resources, save energy, reduce consumption, prevent and control environmental pollution, protect ecology, and improve the capacity of tackling climate changes and capacity of preventing and reducing disasters.
(4) Projects that are able to improve people's livelihood and enhance the level of public health.
(5) Projects that are able to promote the development of modern agriculture or rural economy.
(6) Projects that are able to accelerate the social and economic development in areas inhabited by ethnic groups, remote and border areas, and poverty-stricken areas.
Article 13 The state shall adopt appropriate policies and measures to promote and encourage the use of advanced technology, techniques and equipment, and to continuously improve, restrict the use of or eliminate backward technology, techniques and equipment.
Article 14 The state shall strengthen standards preparation, develop national standards and industrial standards for new technologies, new techniques, new materials, and new products in a timely manner according to the law, actively participate in the development of international standards, and push forward the promotion and application of advanced applicable technologies.
The state shall establish an effective military and civilian scientific and technological achievements mutual transformation system, and improve the collaborative innovation system and mechanism of defense-related science and technology. Priority shall be given to the adoption of advanced applicable standards for civil use according to the law for scientific research and production of military products, to promote the mutual transfer and transformation of technologies for military use and civil use.
Article 15 When organizing the implementation of transformation of major scientific and technological achievements, the people's governments at all levels may have relevant departments organize the transformation through public bidding. Relevant departments shall provide the bid winners with the funds or other conditions that they decided to offer at the time of inviting bids.
Article 16 Holders of scientific and technological achievements may have their achievements transformed in the following ways:
(1) Investing in the transformation themselves.
(2) Assigning their achievements to others.
(3) Licensing others to use their achievements.
(4) Carrying out the transformation together with others, with their achievements as the conditions for cooperation.
(5) Investing with their achievements as trade-in, which will be converted into shares or proportion of capital contributions.
(6) Other ways determined by negotiations.
Article 17 The state shall encourage research and development institutions and institutions of higher education to transfer scientific and technological achievements to enterprises or other organizations by assignment, license, investment as a trade-in, and other means.
State-maintained research and development institutions and institutions of higher education shall strengthen management, organization and coordination of transformation of scientific and technological achievements, promote the building of teams for the transformation of scientific and technological achievements, optimize the process of transformation of scientific and technological achievements, and transfer technologies through their own institutions in charge of technology transfer or independent service agencies for the transformation of scientific and technological achievements entrusted by them.
Article 18 State-maintained research and development institutions and institutions of higher education may make independent decisions on assignment, license, or investment as a trade-in of scientific and technological achievements they hold; however, with prices to be determined by pricing in agreement, listing on the technology exchange market, auction, and other ways. In the case of pricing in agreement, they shall disclose the names of scientific and technological achievements and the proposed transaction prices in their entities.
Article 19 For job-related scientific and technological achievements obtained in state-maintained research and development institutions and institutions of higher education, the accomplishers and participants may, without changing the ownership of the job-related scientific and technological achievements, transform the scientific and technological achievements according to the agreements reached with their employers and enjoy the rights and interests as stipulated in the agreements. Their employers shall provide support for the transformation of the aforesaid scientific and technological achievements.
The accomplishers of scientific and technological achievements or persons in charge of research projects may not obstruct transformation of the job-related scientific and technological achievements, take into their own possession the job-related scientific and technological achievements and the relevant technical materials and data, or infringe upon the lawful rights and interests of their employers.
Article 20 The competent departments of the research and development institutions and institutions of higher education, the administrative departments of public finance, and science and technology, and other relevant administrative departments shall establish a performance assessment system in favor of promoting the transformation of scientific and technological achievements, regard the transformation of scientific and technological achievements as one of the important contents and bases for evaluation of relevant entities and personnel, and financial support for scientific research, and increase financial support in respect of scientific research for relevant entities and personnel with outstanding performance in transformation of scientific and technological achievements.
State-maintained research and development institutions and institutions of higher education shall establish professional title appraisal, post management, and examination and evaluation rules commensurate with the characteristics of the transformation of scientific and technological achievements, and improve the income distribution incentive and restraint mechanism.
Article 21 State-maintained research and development institutions and institutions of higher education shall submit annual reports on the transformation of scientific and technological achievements to the competent departments, specifying the quantity of the scientific and technological achievements they have obtained according to the law, the implementation of transformation, and distribution of relevant income. The competent departments shall, according to the relevant provisions, submit the annual reports on the transformation of scientific and technological achievements to the administrative departments of public finance, and science and technology, and other relevant administrative departments.
Article 22 An enterprise may, for the purpose of adopting new technologies, new techniques and new materials and manufacturing new products, publish information on its own or authorize an intermediary scientific and technological service institution to solicit the scientific and technological achievements that it needs or to find partners for the transformation of scientific and technological achievements.
The administrative departments of science and technology of the local people's governments at or above the county level and other relevant departments shall, according to the division of responsibilities, provide assistance and support to enterprises for obtaining the necessary scientific and technological achievements.
Article 23 An enterprise shall be entitled to transform scientific and technological achievements independently or jointly with domestic or foreign enterprises, public institutions, or other cooperators.
Through fair competition, an enterprise may, independently or jointly with other entities, undertake the projects of scientific and technological research and development or transformation of scientific and technological achievements arranged by governments.
Article 24 For science and technology projects that are established with financial funds, have market application prospects, and have specific industrial goals, relevant government departments and regulatory authorities shall give full play to the leading role of enterprises in the selection of research and development directions, implementation of projects, and application of achievements, and encourage enterprises, research and development institutions, institutions of higher education, and other organizations to jointly implement them.
Article 25 The state shall encourage research and development institutions and institutions of higher education to cooperate with enterprises in jointly transforming scientific and technological achievements.
Research and development institutions and institutions of higher education may participate in the bidding or tendering organized by relevant government departments or enterprises for the transformation of scientific and technological achievements.
Article 26 The state shall encourage enterprises to conduct research and development, achievements application and promotion, standards research and development, and other activities jointly with research and development institutions, institutions of higher education, and other organizations, by means of cooperation among industry, universities and research institutes such as jointly establishing research and development platforms, technology transfer institutions, or technological innovation alliances.
All partners shall enter into an agreement, to specify the organizational form of cooperation, division of tasks, capital investment, intellectual property rights ownership, equity allocation, risk sharing, responsibilities for breach of contract, and other matters.
Article 27 The state shall encourage research and development institutions and institutions of higher education to conduct exchange of scientific and technological personnel with enterprises and other organizations, employ scientific and technological personnel of enterprises and other organizations to take part-time jobs of teaching and scientific research according to the professional characteristics and technological development needs of industries and fields, and support their scientific and technological personnel in transforming scientific and technological achievements in enterprises and other organizations.
Article 28 The state shall support enterprises, research and development institutions, institutions of higher education, vocational colleges, and training institutions in jointly establishing internship and training bases for students and scientific research agencies for postgraduates, to jointly train professional and technical talents and high-skilled talents.
Article 29 The state shall encourage agricultural scientific research institutions and agricultural experiment and demonstration entities to transform scientific and technological achievements in agriculture independently or jointly with other entities.
Article 30 The state shall cultivate and develop the technology market, and encourage the establishment of intermediary scientific and technological service institutions to provide technology trading places, information platforms, information retrieval, processing and analysis, assessment, brokerage, and other services.
Intermediary scientific and technological service institutions that provide services shall follow the principles of impartiality and objectiveness, shall not provide false information or certificate, and have the obligation to keep confidential the state secrets and the trade secrets of the parties to which they have access in the course of providing services.
Article 31 The state shall, in light of industrial and regional development needs, establish a public research and development platform, to provide technology integration, common technology research and development, intermediate experiment and industrial tests, systematic and engineering development of scientific and technological achievements, technology promotion and demonstration, and other services for the transformation of scientific and technological achievements.
Article 32 The state shall support the development of such institutions for the incubation of science and technology enterprises as scientific and technological enterprise incubators and university science parks, to provide incubation spaces, business startup counseling, research and development, management consulting, and other services to small- and medium-sized scientific and technological enterprises at the start-up stage.
Chapter III Guarantee Measures
Article 33 The financial funds for the transformation of scientific and technological achievements shall be chiefly used as guidance funds, loan interest subsidies, subsidy funds, risk investment and other funds for promoting the transformation of scientific and technological achievements.
Article 34 The state shall, in accordance with the provisions of the relevant tax laws and administrative regulations, implement tax preference for the activities of transformation of scientific and technological achievements.
Article 35 The state shall encourage banking financial institutions to conduct innovation in organizational form, management mechanism, financial products and services, and other respects, and encourage the provision of intellectual property right pledge loans, equity pledge loans, and other loan services to provide financial support for the transformation of scientific and technological achievements.
The state shall encourage policy financial institutions to take measures to provide more financial support for the transformation of scientific and technological achievements.
Article 36 The state shall encourage insurance institutions to develop insurance products commensurate with the characteristics of the transformation of scientific and technological achievements to provide insurance services for the transformation of scientific and technological achievements.
Article 37 The state shall improve the multi-level capital market and support enterprises in financing for projects of transformation of scientific and technological achievements through equity transaction, issuance of stocks and bonds according to the law, and other direct financing ways.
Article 38 The state shall encourage venture capital institutions to make investment in projects of transformation of scientific and technological achievements.
Venture capital investment guidance funds established by the state shall guide and support venture capital institutions in investing in small- and medium-sized scientific and technologic enterprises at the start-up stage.
Article 39 The state shall encourage the establishment of funds or risk funds for transformation of scientific and technological achievements. Such funds shall be raised by the state, local governments, enterprises, public institutions and other organizations or individuals, and shall be used to support transformation of scientific and technological achievements that need substantial investment, involve considerable risks and promise high yields, and to accelerate the application of major scientific and technological achievements in industrial production.
Funds and risk funds for transformation of scientific and technological achievements shall be established and used in accordance with relevant provisions of the state.
Chapter IV Technological Rights and Interests
Article 40 Where an entity completing a scientific and technological achievement transforms the scientific and technological achievement in cooperation with other entities, the ownership of the rights and interests relevant to the scientific and technological achievement shall be specified in a contract according to the law. If it is not specified in the contract, the following principles shall be observed:
(1) Where there is no new invention or creation from the cooperative transformation of the scientific or technological achievement, the rights and interests of the scientific and technological achievement shall belong to the entity completing the achievement.
(2) Where a new invention or creation is generated from the cooperative transformation of the scientific and technological achievement, the rights and interests of the new invention or creation shall belong to all parties to the cooperative transformation.
(3) As to any scientific and technological achievement generated through cooperative transformation, all parties to the cooperative transformation shall be entitled to put into practice such scientific and technological achievement; and transfer of such scientific and technological achievement shall be subject to consent of all parties.
Article 41 Where an entity completing a scientific and technological achievement cooperates with other entities in transforming the scientific and technological achievement, all parties to the cooperative transformation shall reach an agreement on protection of the technical know-how; and the parties may not violate the agreement or the requirements of the obligee on keeping the technical know-how confidential, or disclose or allow others to use the technology.
Article 42 Enterprises and public institutions shall establish and improve the technical know-how protection rules to protect their technical know-how. Employees shall comply with the technical know-how protection rules of their employers.
Enterprises and public institutions may enter into an agreement with relevant employees who participate in the transformation of scientific and technological achievements, specifying that they should keep confidential the technical know-how of the entities during the period when they are on job or within a specified period of time after they leave office or retire; and the said employees may not violate the agreement, disclose the technical know-how of their employers, or engage in transformation of the scientific and technological achievements same as those of their employers.
No employees may transfer job-related scientific and technological achievements without authorization or in disguise.
Article 43 Income obtained by state-maintained research and development institutions and institutions of higher education from the transformation of scientific and technological achievements shall be totally retained thereto and be mainly used for science and technology research and development, achievement transformation, and other relevant work after rewards and remunerations are granted to people who have made significant contributions to the completion and transformation of job-related scientific and technological achievements.
Article 44 After job-related scientific and technological achievements are transformed, the entities completing the scientific and technological achievements shall grant rewards and remunerations to people who have made significant contributions to the completion and transformation of the scientific and technological achievements.
The entities completing the scientific and technological achievements may specify or reach an agreement with scientific and technical personnel on the methods, amount, and time limit of rewards and remunerations. In developing relevant provisions, the entities shall fully solicit opinions from their scientific and technical personnel and announce relevant provisions in their entities.
Article 45 The entities completing the scientific and technological achievements that have not specified or have not reached any agreement with scientific and technical personnel on the method and amount of rewards and remunerations shall grant rewards and remunerations to people who have made significant contributions to the completion and transformation of the scientific and technological achievements according to the following criteria:
(1) Where a job-related scientific and technological achievement is assigned or licensed to others, not less than fifty percent of net income from assignment or license of such scientific and technological achievement shall be withdrawn.
(2) Where a job-related scientific and technological achievement is used as a trade-in in investment, not less than fifty percent of shares or capital contributions formed from such scientific and technological achievement shall be withdrawn.
(3) Where a job-related scientific and technological achievement is implemented independently or in cooperation with others, not less than five percent of business profits from the implementation of the scientific and technological achievement shall be withdrawn consecutively for three to five years after the transformation and successful production thereof.
The method and amount of rewards and remunerations that state-maintained research and development institutions and institutions of higher education specify or agree upon with scientific and technical personnel shall comply with the criteria specified in item (1) to item (3) of the preceding paragraph.
State-owned enterprises and public institutions shall, in accordance with the provisions of this Law, include the expenditures of rewards and remunerations granted to people who have made significant contributions to the completion and transformation of the job-related scientific and technological achievements into their total wages in the current year, but the said expenditures shall not be subject to the restriction of their total wages in the current year and shall not be included into their total wage base.
Chapter V Legal Liability
Article 46 Undertakers of science and technology projects established with financial funds that fail to submit scientific and technical reports, or summarize and submit scientific and technological achievements and relevant intellectual property right information according to this Law shall be ordered to make correction by relevant government departments and regulatory authorities organizing the implementation of the projects; and if the circumstances are serious, notices of criticism shall be circulated, and the project undertakers shall be prohibited from undertaking any science and technology projects established with financial funds within a certain period.
State-maintained research and development institutions or institutions of higher education that fail to submit annual reports on the transformation of scientific and technological achievements in accordance with the provisions of this Law shall be ordered by competent departments to make correction; and if the circumstances are serious, notices of criticism shall be circulated.
Article 47 Whoever, in violation of the provisions of this Law, obtains awards and honorary titles, fraudulent money or illegal profits by practicing fraud and resorting to deception in transformation of scientific and technological achievements shall be ordered to make correction by relevant government department according to its management responsibilities; the awards and honorary titles shall be cancelled; the illegal gains shall be confiscated; and fines shall be imposed thereupon. If economic losses are caused to others, he or she shall assume civil liability for compensation according to the law. If a crime is constituted, he or she shall be subject to criminal liability according to the law.
Article 48 Science and technology service institutions and their employees that, in violation of the provisions of this Law, deceive parties concerned by deliberately providing false information, experimental results, or assessment opinions, among others, or collude with one party to deceive the other party shall be ordered to make correction by relevant government departments according to their management responsibilities, be subject to confiscation of illegal gains, and be fined; and if the circumstances are serious, their business licenses shall be revoked by the administrative departments of industry and commerce according to the law. Those who cause economic losses to others shall assume civil liability for compensation according to the law; and if a crime is constituted, the offender shall be subject to criminal liability according to the law.
Intermediary scientific and technological service institutions and their employees that disclose state secrets or trade secrets of parties in violation of the provisions of this Law shall assume corresponding legal liabilities according to the provisions of the relevant laws and administrative regulations.
Article 49 Where the administrative departments of science and technology and other relevant departments, and their employees abuse power, neglect duties, practice favoritism or make falsifications in the transformation of scientific and technological achievements, the organs in charge of appointment and removal or the supervisory organs shall impose punishment on the directly responsible persons in charge and other directly liable persons according to the law; and if a crime is constituted, the offender shall be subject to criminal liability according to the law.
Article 50 Whoever, in violation of the provisions of this Law, usurps others' scientific and technological achievements by means of instigation, luring or coercion, thus infringing upon others' lawful rights and interests, shall assume civil liability for compensation according to the law and may be fined; and if a crime is constituted, the offender shall be subject to criminal liability according to the law.
Article 51 If, in violation of the provisions of this Law, an employee discloses the technical know-how of his or her employer without permission of the employer, or transfers a job-related scientific and technological achievement without authorization or in disguise, or if a person who took part in the transformation of a scientific and technological achievement violates the agreement reached with his or her employer by engaging in the transformation of the scientific or technological achievement same as that of the employer during the agreed period of time after leaving office or retiring, he or she shall assume civil liability for compensation according to the law if economic losses are caused to the employer; and if a crime is constituted, he or she shall be subject to criminal liability according to the law.
Chapter VI Supplementary Provisions
Article 52 This Law comes into force on October 1, 1996.