Research on the Legal Position and System of the Technology and Innovation Support Center (TISC)

Zhang Shuang Ge Zhangzhi

Abstract： The Technology and Innovation Support Center （TISC） is a cooperative and co-constructed organization of the World Intellectual Property Organization and the National Intellectual Property Administration of the People's Republic of China. TISC institutions are spreading rapidly in China and other places， which has produced many rights and obligations in the process of development， but the legal position of TISC itself is still unclear. It is not clear whether legal person or unincorporated organization rules apply to TISC， and there are many questions about its internal organization. Outstanding problems include whether a governing body and supervisory body are necessary and how to construct them， and how the executive body should make decisions and arrangements and connect with the outside world. This study concludes that in the long run， TISC can better show the intrinsic value of providing professional intellectual property services if it is considered a non-profit legal person and is incorporated into the regulation of social service institutions. Doing so will better promote the application of regional intellectual property rights and service regional innovation and development.

Key words： Technology and Innovation Support Center; legal person; non-profit legal person; social service institutions

CLC： G 311             DC： A Article ID： 2096-9783（2021）04-0136-13

1 Introduction

The Technology and Innovation Support Center （TISC） originated from a proposal （Wo / GA / 31 / 11）[1] submitted by Brazil and Argentina at the World Intellectual Property Conference in 2004 and has been supported by more than ten developing countries. Subsequently， the proposal was fully discussed and divided into six clusters. Among them， the eighth proposal in the "technical assistance and capacity building cluster" is to "Request the World Intellectual Property Organization （WIPO） to develop agreements with research institutions and with private enterprises with a view to facilitating the national offices of developing countries， especially in Least Developed Countries （LDCs）， as well as their regional and sub-regional intellectual property organizations， to access specialized databases for the purposes of patent searches". In April 2009， WIPO officially launched its first pilot project， namely the establishment of TISC under the framework of the WIPO development agenda. TISC is designed to provide innovators in developing countries with access to locally based， high-quality technology information services and other related services[2].

At present， TISC is developing rapidly. Currently， 1021 TISC organizations have been established globally[3]， and China has built four batches of 102 TISC organizations. In the process of TISC's rapid development， many problems have appeared， and one prominent problem is the legal position of TISC. However， how to define the legal status and nature of TISC remains controversial. The legal status of TISC can be accurately defined， in accordance with the Chinese civil code functionalism[4] and special types of classification， as a for-profit legal person， non-profit legal person， or special legal person. This paper first considers TISC's current construction， in order to analyze the legal nature of TISC and accurately define it. In view of the fact that no special legal person status now exists among the constructed TISC units， this paper does not include the special legal person in the scope of analysis. Also， for convenience of analysis， this paper does not subdivide the "for-profit person status" into the categories of "limited liability company" and "joint stock limited company" rather， these company types are integrated into the scope of the company. In addition， in accordance with to the relevant documents of the Ministry of Civil Affairs of the People's Republic of China， this paper identifies social service institutions and private non-enterprise units as the same[5]. The specific situation of TISC construction units in China is as follows.

Table 1    Current situation of TISC construction units in China

[Classification of legal person For-profit legal persons Non-profit legal person Organization type Companies Enterprises Social organizations Social service institutions Public institutions Number 23 2 3 3 71 Total 102 ]

The following pie chart visualizes the distribution of types of TISC construction units for subsequent detailed analysis. The distribution of TISC construction units in China is as follows.

From Table 1 and Figure 1， the distribution of existing TISC construction institutions in China shows the following characteristics： （1） On the whole， there are 77 non-profit legal persons， accounting for 76% of all TISC construction units. （2） Among all the non-profit legal person construction units， the institution type of construction unit is the most common， accounting for 70% of the total TISC construction units. （3） Among all TISC construction units， there are 25 for-profit legal person units， accounting for 24.5% of the total number of TISC construction units. Although this proportion is relatively small， it is close to a quarter， and these units occupy an important position in the whole TISC construction units. （4） Among the TISC construction units of type for-profit legal person most are companies （a total of 23）， accounting for 22% of the total TISC construction units and 92% of the for-profit legal person type of TISC construction units.

To sum up， although the legal position of TISC construction units in China is very clear， the legal position of TISC itself is not clear. It is uncertain whether TISC is a legal person or an unincorporated organization. If it is a legal person， what types can it belongs to？ If TISC is an unincorporated organizations， how should it be regulated？ Due to the unclear legal position of TISC， confusion also exists in its internal organization.

2 Perplexity of Legal Position of Technology and Innovation Support Center

At present， the legal regulation of TISC in China remains hazy， and no law clearly defines its legal nature and legal status. This means that TISC is in a state of constant change in the choice between legal person and unincorporated organization， which breeds many legal dilemmas. The dilemma caused by the change of TISC's legal status is mainly reflected in two aspects： first， the legal position is unclear; second， the legal nature is vague.

The legal position of TISC is unclear： that is， the position of TISC as a legal person and unincorporated organization is not clear. In other words， does TISC belong in the legal person category？ If so， what type of legal person is it？ If not， can it be classified as an unincorporated organization？ If TISC is classified as an unincorporated organization， what is its subclass？

Some people view TISC as a professional service organization in an unincorporated organization， while others think it is a legal person. Aside from these questions about the legal position， there are also great differences of opinion about its legal status. What kind of legal person is TISC？ Is it a for-profit legal person or a non-profit legal person？ Or is it a special legal person？ In this regard， different scholars hold different standards， and they will also have different views. At present， this conflict in viewpoints is why the specific legal position of TISC remains wavering between legal person and unincorporated organization in Chinese academic circles. In view of the unclear positioning of TISC at present， there are many confusions about its legal nature. Specifically， there are ambiguities in identifying TISC as an aggregate corporation or consortium corporation， a for-profit legal person or non-profit legal person， and an unincorporated organization.

2.1 Dispute between Aggregate Corporation and Consortium Corporation

From the perspective of legal person， the most common dilemma in TISC is the dispute about whether it is an aggregate corporation or a consortium corporation. It is generally believed that the aggregate corporation is a collection of people， and that the consortium corporation is a collection of property[6]. The difference between the nature of the aggregate corporation and the consortium corporation lies in the different foundation of the establishment[7]. However， the foundation of TISC is not obvious， and views that TISC should be classified as an aggregate corporate or a consortium corporation coexists. Professor Sun Xianzhong believes that the order of establishment of the consortium corporation and the aggregate corporation can be regarded as the identification standard according to the sequence of the people involved and property establishment[8]. If TISC is considered to have had people first and then gained property， it should be classified as an aggregate corporation. If property came before people， then TISC should be called a consortium corporation. In terms of TISC at its present stage in China， vagueness exits not only about the timing of its collection of people or property， but also on whether the focus of TISC is now people or property. Different scholars hold different standards for TISC to belong to the classes of aggregate corporation or consortium corporation， so different results are produced.

2.2 Confusion between For-profit Legal Person and Non-profit Legal Person

Based on whether the legal person can carry out profit-making activities and whether the income from operation can be distributed to its members， the legal person class can be divided into the subclasses for-profit legal person and non-profit legal person[9]. A for-profit legal person should meet two conditions： to make profit as its main purpose and to distribute its income to members[10]. Profit refers to the stated purpose of activities when the legal person is established， and whether requirements restrict the disposal of the resulting profit after the establishment. A for-profit legal person will obtain profit and distribute it to investors as its purpose of establishment， but that does not mean that a for-profit legal person must take this as the standard basis for profit distribution. The non-profit legal person is the counterpart to the legal person corresponding to the for-profit legal person[11].

There are different views on whether TISC is profitable and whether it distributes profits to members. TISC is a for-profit legal person if it considers itself capable of engaging in profit-making activities and may distribute its operating income to its members. If the above two conditions are denied in whole or in part， then TISC is a non-profit legal person. Scholars have differing opinions on the standards for profit and non-profit identification. Some scholars believe that it should be confirmed before the event （focusing on the purpose）， while others think it should be recognized afterwards （focusing on the result）[12]. If its status should be determined in advance and guided by the values of its constituent TISC units， then TISC could be classified as both a for-profit legal person and a non-profit legal person. If TISC's status is recognized afterwards， in view of its own orientation of social service values， TISC is mostly a non-profit legal person. However， the recognition of non-profit legal person is different because of the selection of standard： overall profit or business identification. If overall profit is taken as the standard， TISC should be a non-profit legal person， but if TISC has profit-making business standard， then TISC may be a for-profit legal person. In short， if TISC is regulated using the legal person category， doubts will arise about whether to apply for-profit legal person and non-profit legal person policies.

2.3 Perplexity in the Application of Unincorporated Organization

Viewing TISC from the perspective of unincorporated organizations， there will be even greater confusion. Does TISC meet the requirements of unincorporated organization？ According to the civil code of China， an unincorporated organization is an organization that does not have the legal person status but may engage in civil activities in its own name in accordance with law[13]. The specific types include sole proprietorships， partnerships， professional service institutions that do not have the legal person status， and the like. However， from the perspective of legal provisions， the constitutive requirements of Chinese unincorporated organizations are not clear. Some scholars believe that TISC is an organization that provides social intellectual property services， which is similar to the services of law firms and accounting firms in terms of service content. Therefore， TISC can be included in the regulation of professional service institutions that do not have legal person status. However， professional service institutions that do not have legal person status do not match TISC in terms of responsibility， such as registered capital， professional qualification of members， and working experience[14]. Therefore， it is still necessary to consider carefully whether TISC should be included in the class of unincorporated organizations.

To sum up， considering the numerous theories in the field of civil law， scholars adopt different standards， which inevitably leads to confusion and difficulties in the identification of the nature of TISC. What is the legal nature and legal status of TISC？ What kind of theory is the main one， or which viewpoint should be preferred for application？ These questions are worthy of careful consideration by civil law scholars in China.

3 Doubts about the Construction of the Internal Organization of Technology and Innovation Support Center

As a new social organization， TISC must have a clear organizational structure to ensure its efficient operation. However， there are still many uncertainties in TISC's internal organization， such as whether there is a governing body， how to make decisions and deploy the executive body， and whether it is necessary to set up a supervisory body.

3.1 Is a TISC Governing Body Necessary？

3.1.1 Does a TISC Governing Body Exist？

First of all， from the perspective of unincorporated organizations， let us explore the existence of a TISC governing body. If TISC is considered to be an unincorporated organization， according to Article 105 of China's civil code， one or more persons can be determined to participate in civil activities as TISC's organizational representatives， and there is no need to set up a single governing body[14].

Next， from the perspective of legal person status， let us observe whether a TISC governing body exists. Many Chinese scholars believe that the provisions of special legal person in China's civil code is an explicitly enumerated， closed structure[11] containing exactly four legal types： state-organ legal persons， rural economic collective legal persons， urban and rural cooperative economic organization legal persons， and primary-level self-governing organization legal per sons[15]. It is obvious that TISC does not belong to any form of special legal person listed in the civil code， so we can first exclude the option of classifying TISC as a special legal person， narrowing the focus to the options of for-profit legal person and non-profit legal person. In brief， the for-profit legal person must set up the governing body， but a governing body in the non-profit legal person is not legally required.

To summarize this section， if TISC adopts the form of an unincorporated organization or non-profit legal person， it must have a governing body， but if TISC chooses the form of a for-profit legal person， the governing body is a necessary institution.

3.1.2 TISC Faces a Dilemma between For-Profit Legal Person and Non-profit Legal Person

China's civil code divides the concept of a legal person into a for-profit legal person and non-profit legal person according to functionalism. The appropriate choose for TISC is directly related to the existence of its governing body. In this regard， some people think that TISC is a social organization that mainly undertakes intellectual property social services， and its business is non-profit， so it should be regulated according to the non-profit legal system. Because its comprehensive intellectual property service can be regarded as a kind of social service， it can be included in the social service institutes under the non-profit legal person classification. According to Article 92 of China's civil code， social service institutions are classified as endowed legal persons. Furthermore， according to Article 93 of China's civil code， an endowed legal person must establish a decision-making body such as a Council or some other form of democratic management body. Therefore， TISC only needs to set up a Council or democratic management body， without setting up another governing body. However， some people think that TISC mainly provides market-oriented services， so TISC is not only social， but also in line with the trend of market development. The construction of TISC is only the form of a non-profit organization may not be conducive to the expansion of its property and the guarantee of its normal and lasting operation. Moreover， TISC institutions in different regions are faced with different funding and policies， and the source and quantity of funds are quite different. If all TISCs are legally constructed in the form of a non-profit legal person， some TISC institutions will inevitably have crises of capital chain rupture. This fact indicates that TISC should be constructed as a for-profit legal person and should set up a governing body to ensure its growing development.

3.1.3 TISC Applicable Endowed Legal Person will Conflict with Consortium Legal Person

According to Article 93 of China's civil code， an endowed legal person has a Council， a democratic management body， as its decision-making body. However， at present， although China's definition of Council of endowed legal persons is described as a "decision-making body"， it actually performs the functions of governing body. If TISC adopts the endowed legal person form， its governing body should also be its Council and democratic management body. However， from the perspective of the Civil Law System， the legal person can be identified as an aggregate corporation or a consortium corporation according to the legal person's foundation. If TISC is an endowed legal person， it should also be a consortium legal person. In addition， the foundation of a consortium legal person is the collection of donated property， and the consortium corporation should take the will of the donor or the founder as the purpose; that means it will no longer have a governing body， but only set up an executive body and supervisory body[16]. Article 93 of China's civil code clearly requires the governing body of the endowed legal person to be a necessary institution， which obviously conflicts with the traditional civil law theory. Considering this reality， whether TISC should set up a governing body is once again in a fog.

3.2 Lack of Internal Decision-making Deployment and External Connection Specification of Executive Body

The executive body is the administrative organ for the legal person to carry out civil activities， and its main function is to exercise administrative command. The purpose of the exercise of the command is to implement and deploy the decision-making and policy of the governing body quickly and accurately. At present， the following problems still exist in the exercise of command by the TISC executive body.

3.2.1 The Scope of Responsibility of TISC's Executive Body is Unclear

Problems exist in the daily affairs of TISC， such as whether the governing body （or Council） is responsible for the daily affairs of TISC or the executive body， and where the boundaries of their respective responsibilities lie. It is generally believed that the governing body （or Council） is responsible for the affairs related to TISC's own major interests， and its executive body is responsible for the daily standardized operation affairs. However， many puzzles remain in the actual implementation， such as what kind of affairs belong to the executive body， how to distinguish the specific affairs properly， and what kind of personnel should be responsible for different affairs.

3.2.2 The Execution Procedure of TISC's Executive Body is Unclear

At present， when the TISC executive body carries out its daily affairs， relevant standardized procedures are not available. The external service items and service guidelines are not standardized， and there is no clear provision regarding the service period of TISC. No standardized procedure has been formed clarifying how to solve the disputes before， during， and after TISC provides services; how to deal with the differences between TISC and the service recipient about service quality; how to identify technical contract secrets and service fraud， and how to preserve and disclose service records.

3.2.3 Poor External Communication of TISC's Executive Body

At present， the connection between the TISC executive body and its original construction units and their competent departments is not smooth. The main reason is the poor connection between TISC and the original construction unit. Although TISC is closely connected with the original construction unit， there is a great conflict between them. In view of the differences in legal status， legal value， legal regulation， and field between the TISC organization and the original construction unit， their main emphasis is inevitably slightly different， which easily affects each other and leads to poor convergence. In addition， the connection between TISC institutions and competent departments of the units is not smooth. TISC institutions are guided by the needs of market service providers， mainly to meet the intellectual property needs of multiple market entities， while the competent authorities take regional development as the primary goal. In reality， these divergent view of development do cause conflicts.

3.3 The Necessity of a Supervisory Body and the Imperfection of Supervision Structure

Usually， the supervisory body is an indispensable organization of a social organization. The supervisory body ensure the correctness and accuracy of the internal decision-making of the legal person， and its basic responsibility is to implement the supervision power[17]. At present， TISC still faces the following problems in its supervisory body.

3.3.1 Is the Supervisory Body Required for TISC？

In Anglo-American law， there is no distinction between an aggregate corporation and consortium corporation， but it is stipulated that the legal person organization consists of a general assembly and an administrative organ; a supervisory body is not a compulsory organ in compulsory law[16]. In contrast， Article 162 of the Portuguese Civil Code stipulates that the supervisory body is a necessary institution for a consortium corporation[12]. According to the Swiss civil code， the supervisory body is regarded as a necessary organization for an aggregate corporation and consortium corporation[18]. In China's civil code， a supervisory body is not a necessary organ for any legal person other than an endowed legal person[6]. In reality， there are disputes over whether TISC should set up a supervisory body in China. Some people think that TISC has the property of human cooperation and can be classified as an aggregate corporation. From this viewpoint， whether to set up a supervisory body should be determined by internal regulations， and there is no need to forcibly intervene. Some people think that TISC has the property of capital cooperation， so it should be regulated as a consortium corporation， and the supervisory body should be a necessary part of its organizational structure. Some scholars believe that TISC essentially provides services for society， and it has only a few profit-making activities， so it does not need to set up a supervisory body. Others believe that TISC should be required to set up a supervisory body because although TISC mainly provides external social services， it can also accept social donations. If TISC does not set up a supervisory body， it will be irresponsible to the donors， which will easily lead to the corruption of TISC's internal staff， which negatively impacts the social reputation of TISC. This last train of logic is another reason some conclude that TISC should set up a supervisory body， and that body should be considered a necessary organization in TISC. All of the above views have merits and shortcomings， a situation adding to the confusion about TISC.

3.3.2 TISC has Not Yet Formed a Complete Supervision System

According to the measures for the construction and implementation of TISC， issued by the National Intellectual Property Administration of China （hereinafter referred to as the measures for  the supervision of TISC）. These measures， however， stipulate no details about the supervision methods， procedures， and application of supervision results. At present， the TISC supervision system still has the following problems.

The first is the absence of internal and external supervision. In terms of internal supervision， TISC is not completely independent from the original contractor， and many affairs， including personnel and finance， retain ties to the original contractor. In terms of external supervision， external normalized information disclosure is not in place. The main reason is that the information of TISC's internal financial statements， major resolutions， asset disposal， and other aspects is not fully open to the public， which makes it impossible to place TISC in the external space and accept strong external supervision.

The second problem is the lack of superior and subordinate supervision. The prominent performance aspects of this point are that the superior supervision is weak and the subordinate supervision is nominal. Although there are "TISC construction measures" and relevant documents of the National Intellectual Property Administration of China， it is not difficult to find many problems in the implementation of the existing documents. From the substantive point of view， the legal effect level of TISC construction measures too low. From the procedural point of view， the existing TISC regulations are insufficient to form a complete supervision system; there are only trees， not forests. Such regulations are either empty and boring， have no substantive connotation， or have no possibility of implementation， so it is impossible to form a systematic supervision system based on them. Moreover， there is no unified regulation on the subject access and service quality control of TISC， which brings a vague shadow to the supervision of TISC. There is no unified standard， which means that all market subjects meet the standard， and it could be argued that all market subjects cannot meet the standard. How to explain it is a matter of great discretion.

Third， social supervision is not standardized. Social supervision is the real pressure that every social organization should bear. TISC is a socialized organization， but society at large cannot see the role of social supervision in its development. It's unbelievable. In addition， irregularities exist in the supervision standards and procedures， as well as in the qualifications and abilities of TISC individuals or organizations.

4 Suggestions for Improving the Construction of China's Technology and Innovation Support Center

4.1 Defining the Legal Status of TISC

4.1.1 TISC is Excluded from Unincorporated Organization Status

First， the class "unincorporated organization" has no unified and complete management standard， and thus， this status difficult to apply to TISC. The scope of unincorporated organizations is wide， covering sole proprietorships， partnerships， and professional service institutions that do not have legal person status; which explains the lack of a unified and complete management standard[14]. If TISC chooses the unincorporated organization mode to develop， that mode will not help solve the existing problems， and worse，the status could easily to breed other problems.

Second， the establishment of TISC does not conform to the nature of an unincorporated organization. It is not appropriate， as some scholars suggest， that TISC should be regulated by professional service institutions in unincorporated organizations. The reason is that most professional service institutions in unincorporated organizations are social organizations similar to law firms and asset appraisal centers; the biggest feature of such organizations is the human nature of their foundation[14]. However， according to the previous analysis， TISC's foundation has a strong property of capital cooperation; this capital cooperation presents obstacles for professional service institutions that are suitable for human cooperation. Moreover， it is uncertain whether TISC can fully fit with unincorporated organizations in terms of registered capital， membership qualification， and working experience[14].

Third， it is difficult for TISC to apply the legal regulations for unincorporated organizations. According to most academic circles， China's unincorporated organizations status refers to the relevant regulations of partnership. If TISC is viewed as a partnership， it needs to bear limited or joint liability when a part of TISC cannot pay off its debts. However， whether it is limited liability or joint liability， the subject of such liability is controversial. If responsibility is imposed on TISC internal members， it is obviously not in accordance with the law. The internal members of TISC have strong liquidity and substitutability， so TISC is obviously not a partnership. If responsibility falls on the original construction unit， different types of TISC units will have different responsibilities. In other words， a single TISC construction unit could bear unlimited joint liability according to the general partnership， while multiple TISC construction units should be further divided into general partnership or limited partnership， and then bear limited liability or unlimited liability. In this way， the regulation of TISC will become more complicated and deviate from the original intention of clarifying the legal status of TISC. Furthermore， the relationship of relevant rights and obligations in TISC's external civil activities will also be complicated， which negates the effect of clarifying the legal status.

Fourth， China's policy does not allow it. Based on the current strategy for China's intellectual property power， the construction of intellectual property information public service system， and many other current policies， if TISC were constructed an unincorporated organization， problems would result： TISC would fall under the large， wide， and comprehensive legal regulations of unincorporated organizations without unified norms. Moreover， TISC would find it difficult to counteract the influence of its original units， which will form an invisible obstacle to its development and growth. In the long run， the social， economic， and legal costs of unincorporated status would far exceed the present costs.

To sum up， the author believes that TISC should exclude consideration of unincorporated organizations status. Therefore， this paper will not analyze the specific types of unincorporated organizations applicable to TISC in detail. The following will analyze TISC from the perspective of legal person status.

4.1.2 Clarify the Applicable Legal Person Regulation of TISC

The establishment of a legal person generally requires a name， necessary organizational structure， property or funds， and independent responsibility[16]. In Roman law， a legal person initially referred to the role that one performed in particular legal contexts; it means essentially an entity without body[19]. American scholar Lon Fuller traces back the original meaning of "person" in law and calls it "mask". Its application to human beings is only a metaphor， while "legal person" is an evolution of "human"[20]. Some scholars believe that a legal person is a kind of rational and moral behavior ability in essence， and it is a kind of thinking existence[20]. Although TISC contains units of various TISC constructions at present， the future goal of TISC is this： each TISC organization has its own independent name， independent organization， property or funds， and can fully assume external responsibility in the name of TISC. Therefore， TISC should apply for legal person status in China's legal system.

China's civil code divides legal persons into three categories based on functionalism and special types. All of these factors should be considered in the selection of TISC's status. To adapt to market competition， TISC should be a for-profit legal person. If we consider the construction of intellectual property information public service system， providing high-quality social services and stimulating regional innovation and development， TISC should move forward as a non-profit legal person. How to apply will be described in detail below， but the authors believe it is clear that legal person regulation is applicable to TISC.

4.1.3 Excluding Special Legal Persons for TISC

China's civil code limits special legal persons to four legal types by a complete enumeration. Civil law scholars in China hold the idea that the class of special legal persons is a closed structure， and they believe that the extension of special legal person status should be regulated by formal law[15]. Their view is that expanding the scope of the term "special legal person" will erode and shake the basic classification of for-profit legal persons and non-profit legal persons[11， 21]. For these reasons， TISC can not be classified as any type of special legal person， so TISC should exclude from consideration the status of special legal person.

4.1.4 Suggested： TISC Adopt Non-profit Legal Person Regulation

This paper concludes that TISC should adopt non-profit legal person regulation. Specifically， social service institutions regulations should be applied to TISC. According to the previous analysis， TISC aligns with the elements of legal person status， so legal person regulation is appropriate.

At present， whether from the perspective of China's national policy or TISC construction measures， we can see that China's expectation for TISC is to establish a social existence with both public welfare and service in mind. In view of the non-profit characteristics of TISC and the capital cooperation of its foundation， TISC can be classified as a non-profit legal person. We now analyze the specific types of non-profit legal person one by one.

If TISC is subject to the regulation of public institutions， TISC will face the problem of its current internal personnel establishment， which is extremely inconsistent with the reform policies for China's public institutions. This problem excludes TISC from being included in the regulation of public institutions at this stage; TISC is obviously incompatible. For instance， one social organizations requirement is that each has a unique name in China， and each is managed according to a membership system[11]. From the perspective of name alone， TISC is not consistent with these requirements. If the TISC is subject to regulations for foundations， it should not only conform to the entry threshold of the foundation status， but also conform to the operation mode. Judging from the current situation， not all TISC meet the foundation's two standards.

Finally， let us consider social service institutions. In view of facets such as the non-profit purpose of social service institutions， the approval of competent authorities， registration， local financial support， and eligibility for tax incentives， social service institutions are basically consistent with TISC's philosophy. Therefore， this paper believes that it is appropriate to label TISC as a social service institution for regulation.

4.2 Dispelling Doubts about the Legal Nature of TISC

The legal nature of TISC has not been determined yet， and its unclear nature has bought many inconveniences for the development of TISC. Therefore， it is an important task to clarify the legal nature of TISC. This paper attempts to explain the legal nature of TISC from the following points.

4.2.1 Resolve the Dispute between TISC Aggregate Corporation and Consortium Corporation

The first key point is to recognize TISC as a collection of property. This paper holds that the foundation of TISC is the collection of property， and the attribute of human cooperation is weak. It is reasonable to believe that TISC originates from the aggregation of property， and then provides professional intellectual property services. Whether the number of members increases or decreases does not affect the legal nature of TISC. The second key point is to confirm that TISC is primarily financial. It is difficult to judge whether TISC should be established with people first or with money first. It is usually believed that a TISC should be established with people and money at the same time. However， if it is necessary to distinguish the two， this paper holds that when TISC was established， the wealth preceded the people; wealth was the base and people were not. Because TISC is a social organization， property is its sufficient and necessary condition， since the lack of property will seriously affect the operation of its organization. Although members are also essential， property has a higher priority. Therefore， this paper argues that TISC should be recognized as a consortium corporation because of its strong nature of property.

4.2.2 Reduce the Confusion between TISC For-profit Legal Person and Non-profit Legal Person

At present， Chinese academic circles basically agree with Prof. Shui Bing's purpose profit paradigm of identifying non-profit legal person[10]： that is， a non-profit legal person should meet two preconditions： no for-profit activity and no profit distribution. However， in the identification of non-profit legal person， it is not clear whether it should be identified beforehand or afterwards the establishment of TISC， and whether it should be identified as a whole or as a business standard. The solution is as follows.

First， we should distinguish a for-profit legal person from a non-profit legal person according to the standard of prior recognition. Prior recognition means that the legal identity at the time the first registered with the relevant authority; the for-profit legal person has the qualifications of a for-profit legal person after being registered in the market supervision and administration department， and the non-profit legal person has the qualifications of a non-profit legal person after being registered in the civil affairs department. Usually， after the social organization selects a status by registering as a for-profit legal person or non-profit legal person， its choice is a long-term stable confirmation that cannot be changed at will. For the current situation， it is enough to adopt the standard of prior identification. However， prior identification is not conducive to the expansion of China's non-profit undertakings， and there are some shortcomings. In recent years， China should pay attention to the reform of non-profit legal person status in Japanese civil law academic circles. Japan no longer deliberately distinguishes the organizational attributes in advance but adopts the post identification standard. If a legal person is recognized by the government as a public welfare because of engaging in a specific public welfare undertaking， it can be a public welfare type legal person[6]， that is， a non-profit legal person.

Second， we can distinguish a for-profit legal person from a non-profit legal person by using overall identification. If the organization as a whole is regarded as a non-profit entity， it is a non-profit legal person. If the organization as a whole is a for-profit legal person， even if it is engaged in non-profit behavior， that behavior does not change the for-profit attribute of the organization as a whole. However， although this practice is simple and easy to carry out， it is not conducive to the development of non-profit enterprises and is unfavorable to the for-profit legal persons who are occasionally willing to engage in non-profit enterprises.

In short， in practice， the standards for identification of non-profit legal person are prior identification and overall identification， but in the future， it may develop to post identification and business standard identification.

4.3 TISC Constructs a Scientific Organization

In order to promote the sustainable and efficient development of TISC， it is necessary to build a scientific and reasonable organization. Using the above logic， this paper defines the legal status of TISC as a social service institution and a non-profit legal person， and the following analysis will be carried out on this basis. As for TISC organization， this paper suggests that TISC should build an organizational structure with independent operation， mutual cooperation， and internal benign integration of a governing body， executive body， and supervisory body.

4.3.1 Governing Body

First， recognize that TISC has a governing body. In view of the fact that TISC is recognized as a social service institution and belongs to the endowed legal person class， TISC should set up a Council and other decision-making bodies. It is generally believed that the decision-making body of the endowed legal person is its internal governing body， so the authors of this paper believe that TISC has a governing body.

Second， ease the conflict between the TISC's identification as an endowed legal person and a consortium corporation. According to civil law theory in the civil law system， a consortium corporation has no governing body[7]. If TISC is classified as an endowed legal person， it seems to be recognized that TISC does not have a governing body. However， the Chinese civil code does not completely copy the theory of legal person used in the Civil Law System[22]， so there are some shortcomings in this view. In other words， from the perspective of legal person classification， China does not adopt the binary structure of aggregate corporation and consortium; instead， China uses functionalism and special legal person classification to construct China's legal person system. From the perspective of corporate name， China has also abandoned the traditional corporate name requirement for a consortium corporation and adopted the corporate name practices for the endowed legal person. Therefore， although the definition of legal person in China is similar to that in the civil law system， the Chinese civil code does not fully accept the same legal person theory in the civil law system， and it is normal to have some differences. It is also based on China's actual national conditions that in China， the fact that an endowed legal person often has a governing body. Therefore， there is no need to over argue the incompatibility between a Chinese endowed legal person and consortium corporation.

Finally， the internal power structure of TISC should be rationalized. TISC's governing body is the highest internal organ， whose basic function is to exercise decision-making power in civil activities. As the basic law in the civil field of China， the civil code of China should have detailed provisions on the internal organizational framework and specific functions and powers of the endowed legal person. However， due to various reasons， the "decision-making body" of the endowed legal person has not been explained in detail， cause the inaccuracy of the law[12]. Therefore， this paper proposes to improve the function orientation of the TISC Council， clarify the status of its governing body， and formally endow the governing body with overall decision-making power.

4.3.2 Executing Body

Firstly， TISC needs to define the scope of the TISC executive body. The TISC executive body should mainly perform daily affairs. Generally speaking， there are two kinds of daily affairs： internal affairs and external affairs. Internal affairs can be divided into technical affairs and daily management affairs. TISC should arrange full-time personnel to carry out the technical affairs， but part-time staff can be arranged to execute daily management affairs. The TISC executive body must be fully responsible for external affairs according to TISC's internal regulations.

Secondly， clarify the working procedure of TISC's executive body. There should be a complete service flow for the working procedure of the TISC executive. Before， during， and after TISC providing services， there should be guidelines for basic services and time limits. Clarify the rights and obligations of both parties and dispute resolution ways in advance. Clarify the TISC service content， standards and specifications， service quality， and specific service procedures in the process. Keep service records and establish service archives afterward. The service contract can be concluded through free negotiation with the service recipient for the technical contract and related private matters. The identification of service fraud shall be subject to the Provincial Intellectual Property Management Department and the National Intellectual Property Administration of China. Each TISC service record can be kept separately for a certain storage period under specific disclosure conditions. Without the permission of the parties concerned， the information involving trade secrets cannot be published， and the information without trade secrets can be made public after treatment to make it harmless.

Thirdly， TISC need to improve the connection between its executive body and the original construction units and competent departments. The external connection apparatus of TISC should pay more attention to the connection with original construction units. In view of the fact that most of the infrastructure of the TISC executive body comes from the original construction units， the executive affairs of the executive body are inevitably affected by those original construction units. Some of these effects are positive， and some are not. The negative interference should be properly handled to ensure the efficient operation of TISC based on its purposes. In principle， TISC can benefit from the positive effects from its original construction units. In addition， TISC can establish a normalized information exchange mechanism with the competent authorities and understand the development goals of the competent authorities in market services， so as to better contribute to regional innovation.

4.3.3 Supervisory Body

Firstly， it is clear that supervision organization is a must for TISC. As mentioned above， TISC has a strong property of capital cooperation， which can be regulated as a consortium corporation. In this paper， the legal status of TISC is classified as an endowed legal person. As an endowed legal person， receiving donated property should be properly supervised， which is a responsibility not only for the donors， but also for TISC itself. Therefore， TISC should set up a supervisory body. According to Article 93 of China's civil code， a supervisory body is a necessary organ for an endowed legal person. Therefore， this paper agrees that a supervisory body is a necessary organ of TISC. That supervisory body directs the behavior of TISC internal members and has the right to disclose and report major issues to the competent authority， the original construction units and the public.

Secondly， TISC should build a complete supervision system. The first goal is to establish a supervision system with both internal and external functions. TISC should get rid of the control of the original construction units and establish its own independent internal supervision mechanism. It needs to establish a standardized information disclosure system to promptly disclose information about TISC management personnel， actual controllers， financial and accounting reports， major resolutions， asset disposal， and other matters.

The second goal is to refine the superior supervision rules. According to the TISC construction measures， the TISC management system is generally divided into three levels. The first level is the TISC coordination working group and TISC Expert Committee under the National Intellectual Property Administration of China. At present， this level is mainly under the authority of the public service department of the National Intellectual Property Administration of China. The second level is the Provincial Intellectual Property management departments in China. The third level is the TISC itself. Refining superior supervision rules means strengthening the supervision of China's National Intellectual Property Administration and Provincial Intellectual Property management departments regarding TISC， refining the access threshold， clarifying service standards， and improving disciplinary measures. In view of the limited number of TISCs in China's provincial administrative divisions， China's Provincial Intellectual Property management departments should constantly refine the supervision rules of TISC， so as to facilitate the better development of TISC.

The third goal is to build a social supervision system. Strengthening social supervision mainly lies in the establishment of a social complaint system. In view of the fact that TISC is still a new thing in China， TISC service content and service quality has not yet developed to have a unified industry standard and specification， and TISC service quality and service level are also uneven in the market environment. In the absence of industry standards and norms， if the TISC service personnel do not provide services according to the standards and norms of the general rational staff， the problem is difficult to detect， and it is difficult to obtain evidence for legal action and recover after the event. Therefore， Chinese legislators can consider strengthening social supervision and to force TISC to form a unified and standardized service standard.

China should establish internal and external parallel supervision systems， refine supervision rules to a superior level and build a social supervision system. The building of this tripartite supervision system for TISC will ensure the TISC's stability.

5 Conclusion

At present， TISC is active in promoting China's innovation and development， but the development of different TISC institutions is uneven， the industry operation has not yet fully entered a scientific and efficient state， and the intellectual property information services provided have not yet been fully developed. However， the analysis presented in this paper finds the pleasing result that TISC still has much development space and potential in China， and the Chinese government provides much support for this intellectual property strategy. The future prospects of TISC are limitless. Although there are still many uncertainties in the legal positioning and organizational system of TISC in China at this stage， with the passage of time， China's intellectual property service market will be further opened， TISC will perfectly fit with the Chinese market， and its legal positioning and organizational system will be more clear.

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技術与创新支持中心（TISC）的法律定位与制度研究

张    爽，葛章志

（中国科学技术大学 知识产权研究院，合肥 230026）

摘    要：技术与创新支持中心（TISC）是世界知识产权组织和国家知识产权知局合作共建机构。当前国内外TISC机构迅速铺展开来，其在发展过程中产生诸多权利义务关系。但当前TISC机构的法律定位依旧不甚明朗，究竟适用法人抑或非法人组织规制并不清晰，其内部组织机构也存在诸多疑问。权力机构和监督机构是否有存在必要及如何建构，执行机构如何决策部署和对外衔接都是亟需解决的突出问题。从长远来看，TISC若适用非营利法人，纳入社会服务机构规制，能较好的展现其提供专业化知识产权服务的内在价值，更好的促进区域知识产权运用，服务区域创新发展。

关键词：技术与创新支持中心;法人;非营利法人;社会服务机构