On The System Of Intellectual Property Investment

The current paper is the interdisciplinary study of the company law and the intellectual property law. Through the analysis of intellectual property rights, which is a special form of investment, and by resorting to the rational and rules of the company capital system, the author tries to make a systemic and profound study of some fundamental problems concerning intellectual property rights such as the eligibility, modes, risks and responsibilities of intellectual property investment, with the aim of enriching the theoretical findings of intellectual property investment and perfecting the intellectual property investment system. The entire paper is divided into seven chapters with chapter One being the introduction, introducing the background, ideas and research methods of the current paper. The main ideas of the other six chapters are listed as follows:1. Intellectual property theory related to investmentThere exists no universal agreement on the definition of the intellectual property rights and the delimitation of its scope in the field of international intellectual property rights. The reveal of the legal attributes of intellectual property rights and the summary of its legal characteristics serve as the theoretical ground for studying the features of intellectual property investment. Focusing on these two issues, this chapter can be seen as the theoretical basis for the study of intellectual property investment in the following chapters.The eligibility of intellectual property is about the fact that why intellectual property rights conform to the qualitative regulation of the object of investment, or in other words, it is about the qualifications of intellectual property rights to be invested. The author holds that the theory of"Four Important Documents"or the"Five Important Documents"theory is workable for the investment of property. But as for intellectual property investment, we only have to make sure that intellectual property to be invested is under the control of the company and that it guarantees the benefits of the company's creditors. Based on this fact, the author endeavors to make a systemic and all-round examination and analysis of the eligibility of different intellectual property rights in light of their different characteristics and comes to the conclusion that not all the intellectual property rights are eligible for investment. 2. The delimitation of the proportion of intellectual property investmentThe company law of China has adjusted the proportion of intellectual property investment. However, the adjustment in the restriction is not a substantial change but only a change in number. The restriction on the proportion of intellectual property can be well justified in theory because the company is a kind of group law and the capital of the company can not only be regarded simply as shareholder'capital for making profit but should also be taken as the property basis of the company credit and the guarantee of the creditors'benefit. Therefore, absolute freedom of contract within the company law is impossible. However, as a matter of fact, there are various ways to elude and escape these restrictions no matter how severe these restrictions are. As a result, there may be a rise in the operation cost and the variety of means of breaking the law, underdevelopment of credit business and unwillingness to adopt effective relief measures on the part of the creditors. This chapter arrives at the conclusion that is it workable for the company to designate the proportion of intellectual property investment according to its operational needs?3. The evaluation of intellectual property investmentIt is necessary to carry out value evaluation prior to investment so as to guarantee the authenticity of intellectual property investment. In this chapter, the author introduces some evaluation modes of intellectual property investment in some western countries and points out that these modes may not work in China due to different characteristics and background of these evaluation modes. In the meantime, the author makes a detailed analysis of the economic means of the value evaluation of intangible assets including intellectual property and points out that the value evaluation of intellectual property investment is subject to many conditions either subjective or objective and these conditions can not be fulfilled completely. The author also holds that there exist some legal problems in the value evaluation of intellectual property investment and these problems may affect the result of value evaluation of intellectual property, thus the principal of the commissioned evaluation and the evaluation institute should deal with it seriously. Besides, the third party dealing with the company should also have a rational judgment of the intellectual property capital disclosed by the company.4. The performance of intellectual property investment The performance of intellectual property investment mainly refers to the delivery of the object of investment to the company and the action or process of administrating the object on the part of the company. Intellectual property right is different from other property rights in terms of acquisition mode and the object of rights. There are two types of acquisition modes, namely legal acquisition and natural acquisition, and different modes of acquisition may require different investment performance. There are technical intellectual property rights and non-technical intellectual property rights in terms of the object of rights. Intellectual property rights with different objectives require different investment performances. In this chapter, the author studies their respective investment performance requirements according to different types of intellectual property rights and lucubrates the legal delivery and physical delivery in investment performance. In addition, the author offers some useful clues of the problems to which the shareholder who contributes capital and the company to be contributed should pay attention during the process of investment performance.5. The risk and risk-prevention of intellectual property investmentThere exist many risks in intellectual property investment which may be caused by the flaws within the intellectual property itself or delinquency of investment performance on the part of shareholders, or by the errors of intellectual property investment of the company or even the uncontrollable market risks of company and shareholders. This chapter makes a detailed and profound analysis of the risks concerning intellectual property and the causes for the risks. Meanwhile, the author makes some suggestions on the prevention and the transfer of the risks and comes to the conclusion that the prior agreement on the potential risks and the risks in the investment agreement by the company and the investor is an effective solution.6. Civil responsibility of intellectual property investmentCivil responsibility of intellectual property investment refers to the civil liability by the shareholders, promoters and company to other shareholders, company and creditors when the shareholder offends the contribution obligation. There is no doubt that the shareholders who offends the obligation of contribution should shoulder due liability but some details concerning the liability should be specified. And there are adequate theoretical findings and legal support concerning the fact that the promoters of the company should be responsible for capital abundance. Some major issues to be elaborated in this chapter include the liabilities by the shareholders to the creditors, whether the capital verification organization and assets evaluation organization should be liable for false statement, the jurisprudential basis of the liabilities, what are the constitutive elements of the liabilities and how to designate the scope and restrictions of the liabilities, etc. In terms of intellectual property investment, when the shareholders offend contribution obligation, they should be subject to the same mechanism of investigation as in other investment forms. But due to the special characteristics of intellectual property investments, civil responsibility of shareholders offending contribution obligation should be carried out in a different way. Apart from making a systemic analysis of the basic theories of investment responsibility, the author mainly elaborates the above-mentioned issues with the view of setting up a comparatively complete theoretical framework and an operational scheme of the intellectual property investment liabilities.