China: 产学研合作与IPO的邂逅(四)——科研院所的有关问题

Last Updated: 18 June 2019
Article by DeHeng Law Offices
Most Read Contributor in China, June 2019

前面三期文章对发行人与高校、高校教职工之间的产学研合作有关问题进行了讨论。应部分同仁要求,另就发行人与公办科研院所(以下简称"科研院所"或"院所")之间的产学研有关问题进行专门讨论。

一、事业单位性质科研院所的有关问题

(一)事业单位性质科研院所的股东资格

关于事业单位性质的科研院所是否具备发行人股东资格,实践中存在较大争议。根据《中共中央、国务院关于分类推进事业单位改革的指导意见》(中发〔2011〕5号)规定,承担基础科研任务的科研院所归为从事公益服务的事业单位类别,原则上不再从事生产经营活动。此外,《中央行政事业单位国有资产管理暂行办法》、《中共中央、国务院关于进一步制止党政机关和党政干部经商、办企业的规定》(中发[1986]6号文件)等亦存在禁止事业单位办企业的规定。但前述禁止或限制事业单位对外投资的制度,其目的及限制情形主要在于保护公共利益,即保障承担公共管理职责的事业单位及其主管单位的中立立场,保障从事公益服务事业单位的公益性。

《促进科技成果转化法》第十八条规定,国家设立的研究开发机构、高等院校对其持有的科技成果,可以自主决定转让、许可或者作价投资。据此,未承担公共管理职责但保留在事业单位序列中的科研院所,为促进科技成果转化的目的,将其持有的技术成果作价出资设立企业的,因不违反其公益目的,其在该等情形下具备发行人股东资格。如中科院上海微系统与信息技术研究所为上海瀚讯发起人股东。

《事业单位国有资产管理暂行办法》明确规定事业单位国有资产使用形式包含对外投资,且配套规定了事业单位以国有资产对外投资的审批程序。据此,未承担公共管理职责但保留在事业单位序列中的科研院所依法定程序以国有资产对外投资,且在发行人申报前取得国有股设置批复的,亦应认为其在该等情形下具备发行人股东资格。类似案例中,将乐县林业科技推广中心为福建金森发起人股东。

(二)事业单位性质科研院所的其他问题

事业单位性质的科研院所与高校同为事业单位,两者在职工兼职合法性问题、职工持股资格、技术出资、技术转让、科技成果研发及转化奖励、研发合作等事项的法规环境基本一致。因前文已详细讨论,此处不再赘述。近期已上市案例中,中简科技、上海瀚讯均涉及较为典型的发行人与事业单位性质科研院所及其职工产学研合作的有关问题。

二、企业性质科研院所的有关问题

根据《中共中央、国务院关于分类推进事业单位改革的指导意见》(中发〔2011〕5号)、《中共中央办公厅国务院办公厅关于印发<关于从事生产经营活动事业单位改革的指导意见>的通知》(厅字〔2016〕38号)等规定,从事生产经营活动事业单位将逐步转为企业。实践中,已有大量的科研院所领取营业执照,改制为企业。企业性质国有科研院所以国有资产保值、增值为目的,与事业单位性质的科研院所以公益服务为目的存在显然的差异,且企业性质国有科研院所通常下亦不存在对外转化科技成果的必要。因此,企业性质科研院所并非科技成果转化语境下典型意义上的"科研院所",不可机械适用科技成果转化语境下"科研院所"的有关法律规定。

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