技术委托开发风险分担的规则适用

发布时间：2018-03-28 22:07

本文选题：技术　切入点：委托开发　出处：《湘潭大学》2017年硕士论文

【摘要】：随着科技技术创新的发展,技术开发已经逐渐成为衡量企业创新能力的标准,由于目前的市场环境和技术环境影响,形成了以高校研究院为技术研发方,以企业为资金投入方的委托开发模式进行技术研发工作。由于技术本身的专业性以及复杂性,技术开发过程中遭遇部分失败或者全部失败的风险时常发生,由于这种风险的产生而带来一系列技术开发纠纷也是与日俱增。然而,除了《合同法》第338条中提及的对技术开发风险进行合理分担外,现有的法律法规并没有对风险如何具体承担做出具体规定。而合同法338条也是笼统规定,在具体适用时也是辅以公平公正、权利义务相一致等法律原则进行处理,但是适用法律原则可解释的空间太大,不利于维护当事人的合法利益,也不利于整个交易市场的利益平衡,更加不利于整个社会的科学技术进步,所以如何合理确定合同双方当事人之间风险责任的承担成为一个亟待解决的问题。文章通过三个方面解析《合同法》第338条以达到风险分担规则的适用。关于举证,由于研发方掌握研发项目的进度以及核心资料,而投资方一般资金富足但不懂技术,所以由研发方举证,经技术鉴定专家衡量以后确定是否属于“无法克服的技术困难”;关于验收,实操中,当技术合同中没有约定验收标准时,合同双方当事人在技术成果的验收问题上经常产生分歧,为了保持技术开发的积极性,激励研发创新,在确定“研究失败或部分失败”时,不应当将市场标准以及专利标准强行纳入,而应该根据实际情况,从合同签订背景、目的、履行情况等方面综合分析得出合同技术标准,以技术标准作为合同的验收标准才符合技术合同的本质;关于风险分担,合理地分担技术开发风险主要体现在各自承担已经付出部分的风险责任,具体地,由投资方承担资金投入风险,相应地,投资方获得研发过程中所取得的阶段性成果和资料,而研发方则承担时间、精力等无形资产投入风险,研发过程中所积累的经验也是研发方所获得的报酬,这种通过利益激励以及平衡损失的方式可以改善双方实力不均衡的局面,达到利益的动态平衡,实现公平正义,同时节约司法成本,提高司法效率。
[Abstract]:With the development of scientific and technological innovation, technological development has gradually become the standard to measure the innovation ability of enterprises. Because of the influence of the current market environment and technological environment, the research and development of technology has been formed with the research institutes of colleges and universities as the R & D side. Technical research and development is carried out by the entrusted development model with the enterprise as the capital inputer. Due to the professionalism and complexity of the technology itself, the risk of partial or total failure in the process of technological development often occurs. As a result of this kind of risk, a series of technology development disputes are also increasing. However, in addition to the reasonable sharing of technology development risks mentioned in Article 338 of the contract Law, The existing laws and regulations do not make specific provisions on how to bear the risks. And Article 338 of the contract Law is also a general provision, which is supplemented by the legal principles of fairness and fairness, consistency of rights and obligations, and so on. However, the application of legal principles has too much room for interpretation, which is not conducive to safeguarding the legitimate interests of the parties concerned, is also not conducive to the balance of interests in the entire trading market, and is even more detrimental to the scientific and technological progress of the whole society. Therefore, how to reasonably determine the risk liability between the parties to the contract has become a problem to be solved urgently. The article analyzes Article 338 of contract Law through three aspects in order to achieve the application of the risk-sharing rules. Since the R & D side is in possession of the progress and core information of the R & D project, and the investor is generally rich in capital but does not know the technology, so the R & D side proves that, Whether or not it is "insurmountable technical difficulty" after being measured by a technical appraisal expert; in practice, when no acceptance standard is stipulated in the technical contract, The parties to the contract often have different opinions on the acceptance of technical achievements. In order to maintain the enthusiasm of technological development and encourage R & D innovation, when determining "research failure or partial failure", Market standards and patent standards should not be forcibly included, but the contract technical standards should be drawn from comprehensive analysis of the background, purpose and performance of the contract according to the actual situation, It is only when the acceptance standard of the contract is taken as the technical standard that it accords with the essence of the technical contract. Regarding the risk sharing, the reasonable sharing of the risk of technological development is mainly reflected in the fact that each of them bears the part of the risk responsibility that has already been paid, specifically, The investment risk is borne by the investor. Accordingly, the investor obtains the stage achievements and information obtained in the R & D process, while the R & D side assumes the risk of intangibles such as time and energy. The experience accumulated in the process of research and development is also the reward received by the R & D side, which can improve the unbalanced situation of both sides' strength by means of interest incentives and balanced losses, and achieve the dynamic balance of interests and the realization of fairness and justice. At the same time, it saves the judicial cost and improves the judicial efficiency.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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