文献类型：期刊文献

中文题名：知识产权质押融资的产权保护与风险管控

英文题名：Property Right Protection and Risk Control of Intellectual Property Pledge Financing

作者：詹启智[1];王争勇[1]

第一作者：詹启智

机构：[1]河南财经政法大学知识产权学院,河南郑州450046

第一机构：河南财经政法大学

年份：2021

卷号：21

期号：9

起止页码：79-91

中文期刊名：创新科技

外文期刊名：Innovation science and technology

基金：2021年度河南省教育厅哲学社会科学基础理论重大项目“马工程知识产权法学观点辩正”(2021-JCZD-29)。

语种：中文

中文关键词：知识产权;质押融资;产权保护;风险管控

外文关键词：intellectual property rights;pledge financing;property rights protection;risk prevention

摘要：我国知识产权质押融资制度肇始于《担保法》,经过《物权法》的发展,在《民法典》中走向成熟。在知识产权质押融资全程中应做好产权保护工作。我国知识产权质押融资经过二十多年的发展,形成了各具特点和优势且存在一定问题和风险的北京中关村、上海浦东和武汉等典型模式。问题是风险之源和管控之基,管控风险既需要充分运用法律规则,实现知识产权的最大经济效益和社会效益,还需要质押融资主体对风险来源进行准确管控,政府提供优质服务,建立市场化的知识产权质押融资风险分担机制。
China’s intellectual property pledge financing system originated from the Security Law,and matured in the Civil Code after the development of the Property Law.Compared with the financing of tangible assets,it has two characteristics:the pledge right is established when the pledge is registered and it has high risk.Its constituent elements include the subject of pledge financing,that is,mainly the pledgee and the pledgor,and the object of pledge financing,that is,the object of pledge financing refers to the subject of pledge right and the conditions for the establishment of pledge financing,that is,the intellectual property within the period of legal protection,the signing of pledge financing contract and the registration of pledge intellectual property.Property right protection should be done well in the whole process of intellectual property pledge financing.The protection of intellectual property rights before the financing of intellectual property pledge mainly clarifies the real ownership of rights and restrictions on the exercise of rights;The protection of intellectual property rights in the process of intellectual property pledge financing is mainly the circulation of intellectual property rights pledged in the process of financing.After pledge financing,the most important protection of pledge property rights is to realize the benefits of pledge financing and to realize the comprehensive benefits of intellectual property rights.The development of intellectual property pledge financing in China in the past 20 years has formed typical models such as Zhongguancun in Beijing,Pudong in Shanghai and Wuhan,which have their own characteristics and advantages,but also have certain problems and risks.Beijing Zhongguancun mode is a market-oriented direct financing mode characterized by"joint pledge of patent right or trademark right between banks and enterprises"and led by bank innovation.Shanghai Pudong mode is an indirect pledge financing mode characterized by"bank and government fund guarantee and patent(intellectual property)counter-guarantee"promoted by the government.Wuhan model is a pledge financing model characterized by"bank and technology guarantee company and patent counter-guarantee"launched on the basis of the experience and lessons of Zhongguancun model in Beijing and Pudong model in Shanghai.The three typical modes will produce the following main problems in the operation of specific pledge financing:(1)The scope of application of intellectual property as a pledge is small.This is manifested in the fact that patent and trademark rights are mainly pledged and the financing objects are mainly medium and large enterprises with a certain industrial scale in a stable period.(2)Difficulty in assessing the value of intellectual property.Scientific and accurate valuation of intellectual property is not only a worldwide problem,but also a basic condition to protect the legitimate rights and interests of relevant subjects.(3)Single financing method of intellectual property pledge.In Our country,intellectual property ownership is the subject of the pledge loan.(4)The costs and risks borne by the government are high,while the risks of commercial banks are low.(5)The management risk of the enterprise itself.The following main factors jointly form the enterprises’own operating risks:(1)As the developer and owner of intellectual property rights,the enterprises’own intellectual property strategy and the allocation of enterprise resources determine whether the property rights in the qualitative intellectual property rights can be timely transformed into the due market value;(2)From the perspective of the enterprises’own operation,whether the intellectual property can be transformed into the economic benefits required by the pledgor within a short period depends on its innovation ability and level,as well as the implementation and application of intellectual property,market environment and government policies.These factors put forward higher requirements for the operation and management of enterprises,but in reality,the level of operation and management of small and medium-sized enterprises in China are more or less with certain problems;(3)From the perspective of enterprise credit,the internal financial management system of some domestic SMEs is often not sound,etc.The problem is the source of intellectual property pledge financing risk.The financing risks of intellectual property pledge mainly come from the following aspects:first,the inherent risks of the pledge.This is due to the essential characteristics of the object of the pledge right,that is,that is,the possession of the non-materiality determined by the pledge does not take place under tangible control.In other words,the essential characteristics of intellectual property make the pledgor and the pledgee unable to control and possess the pledgor or the pledge inherent risk.Second,the legal risk of intellectual property.Title,commission and joint invention(work)are prone to legal risks of ownership disputes.Third,business risk.For example,the pledgor’s intellectual property strategy,the implementation,application and innovation ability of intellectual property,the management system including the financial system and management standard of the enterprise,the credit level of the enterprise and the management level of the operator may all become the source of the financing risks of intellectual property pledge.The source of risk is the basis of risk control.The risk control in intellectual property pledge financing mainly involves the use of legal rules to avoid the risk of pledge financing and the subject of pledge financing to control the source of risk.Based on the factors that affect the success of intellectual property pledge financing,the relevant subjects of pledge financing should start with the control of pledge elements and seek countermeasures by grasping the key problems in pledge financing.The main countermeasures include:(1)Using legal rules to avoid the risk of pledge financing.(2)The enterprise improves its governance structure and creates core intellectual property rights.(3)Starting from three aspects,banks should innovate financial products and improve professional services.(1)Realize the professional development of intellectual property pledge financing through the establishment of science and technology banks;(2)Strengthen the innovation of intellectual property pledge financing financial products;(3)Intermediary agencies should work together to prevent and resolve the risks of pledge financing.(4)Start from five aspects,build an integrated intermediary service platform and cultivate high-quality service personnel.(1)Improve enterprise information management and increase the transparency of enterprise information;(2)Establish progressively improved intellectual property value evaluation mechanism;(3)Establish intellectual property trading platform to dredge channels of intellectual property disposal;(4)Regulate the business process of intellectual property pledge financing and improve the professional quality of practitioners;(5)Improve the risk sharing mechanism of intellectual property pledge financing,and build a multi-level market risk sharing mechanism with multiple parties participating.