深圳经济特区技术成果入股管理办法 Shenzhen Special Economic Zone, Administration Of The Use Of Technological Achievem

深圳市人民政府令第78号
(Promulgated by the Shenzhen City Govenment on, and effective as of, 14 September 1998.)
颁布日期：19980914 　实施日期：19980914 　颁布单位：深圳市人民政府

　　PART ONE　GENERAL PROVISIONS

　　Article 1　These Procedures are formulated in accordance with the provisions of State laws and regulations in order to promote the optimal combination of technological achievements with other key elements of production, to adjust the relationship between the rights and obligations of the investor of technology and the other shareholders, and to protect the interests of companies' creditors and of the public.

　　Article 2　These Procedures apply to the use of technological achievements as capital contribution for equity shares when setting up limited liability companies and share limited companies (hereafter referred to as "companies").

　　Article 3　For the purposes of these Procedures the term "use of technological achievements as capital contribution for equity shares" means use by the owner of a technological achievement (hereafter referred to as the "technological investor") of his property rights over that technological achievement as capital investment in a company. The technological investor shall become a shareholder and the property rights over the technological achievement shall be transferred to the company.

　　Article 4　The technological investor can use the following property rights over technological achievements as capital contributions for equity shares:

　　1. patents on inventions, practical and new applications, and external designs;

　　2. computer software copyrights;

　　3. rights of use over non-patented technological achievements; and

　　4. other technological achievement property rights recognized by laws and regulations.

　　For the purposes of these Procedures the terms "patent" and "computer software copyright" mean rights granted under Chinese law. They do not include rights granted under foreign laws, nor permission to use the relevant rights.

　　Article 5　The provisions on the use of non-patented technological achievements as capital contributions for equity shares shall apply to technological achievements for which patents have been applied for but not yet granted.

　　When a patent application is granted after the technological achievement has been used as a capital contribution for equity shares, the technological investor must transfer the patent rights to the company within six months of the date the patent is granted.

　　Article 6　The outstanding statutory protection period for patents and computer software copyrights used as investment should be not less than three years.

　　Article 7　Non-patented technological achievements used as capital contributions for equity shares should be existing technological achievements which are specific, complete and teachable within a short time to ordinary technicians in that field of technology.

　　Technological achievements not yet fully developed, piecemeal technological knowledge and information, and technological capabilities or experience not easily separable from the technician himself, must not be invested as technological achievements.

　　PART TWO　VALUATION OF TECHNOLOGICAL ACHIEVEMENTS

　　Article 8　Technological achievements used as investment must be evaluated before the company is established and registered or before the company registration is changed.

　　Article 9　When the investment of the technological investor and of the other investors does not involve State-owned assets, the investors can agree to select the following methods of valuation of the technological achievement being used as capital contribution for equity shares:

　　1. valuation through consensus; or

　　2. assessment and valuation by an asset valuation organization in possession of the statutory qualifications.

　　Article 10　When the

investment of the technological investor or any of the other investors does involve State-owned assets, the technological achievement being used as capital contribution for equity shares must be assessed and evaluated by an asset valuation organization in possession of the statutory qualifications, or evaluated in accordance with the relevant laws and regulations.

　　Article 11　An assessment by an asset valuation organization can only be used as the value of the technological achievement after it has been recognized by all the investors.

　　Article 12　The proportion of a company's registered capital represented by the value of the technological achievement must in general not exceed 20 per cent.

　　The proportion of a limited liability company's registered capital represented by the value of a technological achievement recognized by the municipal department in charge of science and technology as being a high and new technological achievement can exceed 20 per cent, but must not exceed 35 per cent.

　　Where there are other provisions governing the proportion of a foreign investment enterprise's registered capital represented by use of technological achievements as capital contributions for equity shares, those provisions shall apply.

　　Article 13　When the proportion of a company's registered capital represented by the value of a technological achievement exceeds the limits stipulated in Article 12 of these Procedures, the investors can increase the registered capital to bring the proportion down to within these limits.

　　If the investors do not increase the registered capital, the proportion of shares held by the technological investor must be within the stipulated limits. The other shareholders shall give appropriate economic recompense for the value of the technological achievement exceeding the amount actually used as capital contribution for equity shares.

　　PART THREE　ARTICLES OF ASSOCIATION

　　Article 14　When a technological achievement is used as capital contribution for equity shares, the articles of association should clarify the following as well as recording those items stipulated in the PRC, Company Law:

　　1. specifics of the technological achievement being invested;

　　2. value of the technological achievement and the way this was calculated;

　　3. proportion of the company's registered capital represented by the technological achievement invested;

　　4. the technological investor's investment obligations and competitor prohibitions;

　　5. time limit and standards for checking and acceptance;

　　6. in the case of investment of a non-patented technological achievement, restrictions on whether or not the technological investor can transfer the technological achievement to a third party while the company remains in existence; and

　　7. method of sharing further improvements to the technological achievement.

　　Article 15　The "specifics of the technological achievement being invested" in the articles of association shall include the investment's patent title, patent type, the date the patent was applied for, patent number and period of validity of the patent; or the computer software's title, registration number and the date it was first issued; or in the case of a non-patented technological achievement its title, content, the requirements and degree of industrial development.

　　Article 16　The "investment obligations" stipulated in the articles of association means the work which must be done by the technological investor, such as provision of complete technical information and material, provision of samples, and implementation of technical guidance and training, to ensure that the technological achievement is transferred smoothly and the company can digest, understand and implement it.

　　Article 17　The standards for checking and acceptance should only involve the technical content of the

technological achievement and the process for passing on knowledge of it and for using it. In general this should include such aspects as provision by the technological investor of blueprints, technical material, samples and prototypes. If there is clear agreement by the parties involved, the technological investor can provide special equipment and raw materials, and other specially produced parts, for the implementation of the technological achievement.

　　Economic benefits or costs forecasts and analyses for when the technological achievement has been implemented cannot be regarded as a component of the standards for checking and acceptance, unless the parties involved have a special agreement to this effect.

　　PART FOUR　INVESTMENT AND REGISTRATION

　　Article 18　Companies should register in accordance with the PRC, Administration of Company Registration Regulations (hereafter referred to as the Company Registration Regulations). When registering the following documents should be appended to the certificates submitted to the company registration authorities:

　　1. patent certificate, computer software registration certificate, or authentication certificate or certificate issued by the municipal department in charge of science and technology for non-patented technological achievements;

　　2. the original of a patent registration book issued by the China Patent Office within the last three months, or the original of a software registration book issued by the software registration authorities within the last three months; and

　　3. a consensus valuation document or asset valuation report signed jointly by all the investors.

　　If the proportion represented by use of the technological achievement as capital contribution for equity shares exceeds 20

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