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3.1. Concept and specificity of subject structure of legal relations on creation and application of uniform technology

Now the existing level of development of technics and technologies cannot be limited by narrow circle of subjects in legal relations on creation of objects of scientific and technical activity any more.

Process of creation of object of scientific and technical activity of uniform technology includes different stages: the organisation of creation of result of intellectual activity (includes search of existing results of intellectual activity, search of founders of new results of intellectual activity), direct creation of results of intellectual activity (protected and unprotected), registration and reception of the rights to result of intellectual activity, introduction of result of scientific and technical activity. At various development cycles of result of scientific and technical activity there can be characteristic subjects. Definition of a circle of subjects has huge value for the theory and practice.

In investigated legal relations the subject structure of the right to uniform technology has the features which are distinct from habitual bilaterial legal relations concerning creation of results of scientific and technical activity between the legal owner and pravopriobretatelem (the customer and the executor).

First, to that item 1240 GK the Russian Federation the special subject of legal relations concerning creation of uniform technology - the person who has organised creation of difficult object is entered. In item 1 of item 1240 GK the Russian Federation it is specified, that the given subject gets the right of use of results on the basis of contracts on alienation of the exclusive right or the licence contracts concluded by such person with owners of exclusive rights to corresponding results of intellectual activity. Results are understood as difficult objects - results of intellectual activity (a film or other audiovisual product, theatrically-entertainment representation, a multimedia product, a database) and also result of scientific and technical activity (uniform technology).

Secondly, concerning uniform technology there is a special reservation in item 5 of item 1240 GK the Russian Federation according to which the person who has organised creation of uniform technology, has the right to use results of intellectual activity as a part of uniform technology.

During working out, registration, introduction and subsequent use of uniform technology there is a whole complex of relations with the specific subject structure.

Activity on creation of uniform technology has complex character and covers organizational, creative, scientific, scientifically - technical, investment, commercial, industrial and other kinds of activity.

In a design of the rules of law entering in gl. 77 GK the Russian Federation, is mentioned possibility of participation in financing of workings out together with the Russian Federation or its subjects and other investors, and also such interrelation is called as the investment project.

Considering that, as activity on its creation, and specific character of an end result in the form of complex scientific and technical result are directed on generation of a certain innovation, consider lawful to consider activity on working out of uniform technology as innovative.

At level of the Russian Federation in Federal act item 2 «About a science and the state scientific and technical policy» innovations are defined as «...

Put into practice new or considerably improved product (the goods, service) or the process, a new method of sales or a new organizational method in business practice, the organisation of workplaces or in external relations.». Innovative activity in the same place is defined as «.dejatelnost (including scientific, technological, organizational, financial and commercial activity), directed on realisation of innovative projects, and also on creation of an innovative infrastructure and maintenance of its activity.».

It is simple to notice, that such categories as realisation of scientific workings out, organizational actions, adaptability to manufacture of activity financing and kommertsializatsija are present as well at activity on working out of uniform technology.

It is necessary to notice, that at federal level legislative fastening of the resulted basic terms is carried out only in 2011, and before similar definitions met only in regional acts. So, for example, the Law of the Belgorod area from 01.10.2009 № 296 «About innovative activity and the innovative policy in territory of the Belgorod area» [127] defines an innovation as «.konechnyj the result of the creative activity which has received realisation in the form of new or advanced production or new or advanced technological process, used in an economic turn.» And innovative activity as «.vid the activity, connected with transformation of ideas (results of scientific researches, workings out, developmental works or others nauchnotehnicheskih achievements) in a new or advanced product, in the new or advanced technological process, realised in an economic turn, including in the field of bio-energetics and biotechnologies...»

M.V.Volynkina defines innovative activity as «.mnogoetapnuju at which realisation one kind of the activity, one stage of a cycle is replaced by another, changing for itself and the subject of activity whom the innovative enterprises concern, the specialised innovative organisations and the state in the name of its bodies which are carrying out measures on regulation of innovative activity, realising an innovative policy, and in the cases specified in the law, acting in a role of the legal owner on results of scientific and technical activity.» [128].

Considering, that process of creation of uniform technology is caused and accompanied by the financing which specificity we have above suggested to consider as criterion for differentiation on "public" and "private" uniform technologies there are bases for its comparison and to investment activity.

Investment activity by two institutsionnymi [129] is fixed by acts as «.vlozhenie investments, i.e. money resources, securities, other property, including property rights, other rights having a monetary estimation and realisation of practical actions with a view of reception of profit and (or) achievement of other useful effect.».

Having compared with activity on creation of uniform technology, it is not difficult to notice, that, first, in both cases presence of investments, and as we already were reserved above, ways which are legislatively fixed as basic for financing of the complex scientific and technical decision takes place, are significant only for cases of creation of "public" uniform technology. Secondly, the sign of investment activity reflecting its orientation on reception of profit or achievement of other useful effect, on volume much more widely also covers itself, including such result, as possibility «... To form a technological basis of certain practical activities». In - the third, the wide instructions on realisation of practical actions give the basis to carry to that and actions of the person who has organised working out on creative ordering of protected into uniform technology protected and not protected objects entering into uniform technology of intellectual activity.

According to the Order of the Government of the Russian Federation from 08.12.2011 № 2227-r [130] strategy of innovative development of the Russian Federation assumes realisation of innovative projects.

Definition of the innovative project is given in Law item 2 «About a science» as «.kompleksa directed on achievement of economic benefit of actions for realisation of innovations, including on kommertsializatsii scientific and (or) scientific and technical results.».

The regulation of design activity at level of the Russian Federation is carried out according to the Governmental order of the Russian Federation from 15.10.2016 № 1050 [131].

The project is defined by the specified normative act as «.kompleks the interconnected actions directed on achievement of unique results in the conditions of time and resource restrictions.».

Design activity, accordingly, it «... The activity connected with initiation, preparation, realisation and end of projects (programs).».

Thus, activity on creation of uniform technology simultaneously is both innovative, and investment, and design.

Is standard subject structure of the legal relations developing concerning uniform technology, is defined by a mention in gl. 77 GK the Russian Federation public formations in the name of the Russian Federation or its subjects, the organizer (the person organised) creations of uniform technology, the person interested and possessing real possibilities for introduction of uniform technology, the executor.

The special law regulating an order of use of uniform technologies (the Law on cession of rights), to number of subjects of relations on cession of rights on uniform technologies or their parts carries: «.organy the executive authority of the Russian Federation or its subject, authorised other bodies or the legal bodies who are carrying out on behalf of public formation the order by the rights to uniform technologies.»; «.litsa, organised creation uniform technologies (executors).»; «.litsa to which the rights to technology belong together with the Russian Federation or its subjects.»; «.litsa the getting rights to uniform technology (and in an order established by this law).»; «.inye participating in cession of rights on uniform technologies of the person.».

The special character of norms directed exclusively on a regulation of result already noted by us, the budgetary financing created with attraction, causes also the approach of the legislator, in - the first, to definition of a circle of subjects in which number financing public formation is without fail included, and, secondly, an identification of the organizer with the executor. Really, if relations on creation of complex scientific and technical result are realised within the limits of the state contract the organizer coincides with the executor of the contract. However concerning the separate results of intellectual activity included in final object, as executors other persons, as a rule, act.

Developing conceptual idea (position) of the present research about necessity of wider approach to legal regulation of uniform technology, we will consider a possible circle of subjects developing in its relation.

Proceeding from a context of an accessory of activity on creation of uniform technology to innovative activity, we investigate subject structure of innovative activity.

According to item 36 of the Modelling innovative code for the state-participants CIS [132] differentiation of subjects and participants of innovative activity is provided, carrying thus to functions of the last possibility to be customers of innovative programs and projects to serve innovative process and to promote workings out, development of manufacture and realisation of an innovative product.

Subjects of innovative activity accordingly are:

«... - authors (co-authors) of innovations;

- Owners of exclusive rights to the objects of intellectual property (innovation) used in innovative activity;

- Physical and legal bodies, their associations creating an innovative product (the research organisations, opytnokonstruktorskie a bureau, the enterprises, higher educational institutions, scientific, experts, inventors, etc.) and (or) carrying out its introduction in a civil (economic) turn;

- Other persons. ».

Participants of innovative activity:

«... public authorities and local government and the organisations authorised by them participating in formation and realisation of the state innovative policy and in regulation of relations in sphere of innovative activity;

- Subjects of an innovative infrastructure (technoparks, business incubators, the centres of a transfer of technologies, venture funds, etc.);

- Others physical and the legal bodies promoting maintenance of innovative activity (banks, the insurance and consulting companies, establishments of formation, etc.);

- Public organisations, their associations, the professional self-adjustable organisations protecting interests of manufacturers and consumers of an innovative product;

- The international organisations;

- Other persons. »

The approach in a regulation, providing separately subjects and separately participants of innovative activity, is carried out taking into account a role of corresponding persons in innovative process.

The attention was repeatedly paid to heterogeneity of structure of subjects of innovative activity in jurisprudence [133].

In O.I.Hudokormova's research resulted classification of subjects of innovative activity and allocated two groups of subjects of innovative activity: the subjects who are directly carrying out innovative activity, and the subjects providing its realisation [134].

More detailed classification of subjects of innovative activity is defined by I.N.Kardash who allocates following groups of subjects of innovative activity: is innovative-active physical and legal bodies; specialised subjects of innovative activity; the organisations of an innovative infrastructure; the state bodies which are taking part in regulation of innovative activity [135].

From the point of view of A.P.Berdashkevich, innovative activity has no universal subjects [136].

It is necessary to notice, that in the Russian Federation at level of the federal legislation there is no legal definition of the subject of innovative activity.

In standard legal acts the legislator is limited to a term definition «innovative activity».

At regional level, on the contrary, acts establish «the subject of innovative activity». For example, in the Law of a city of Moscow «About scientific and technical and innovative activity in the city of Moscow» [137] following definition of concept is resulted: «... The subject of scientific and technical and innovative activity are physical and legal bodies (their association), including the individual businessmen who are carrying out scientific and technical and innovative activity.». In already mentioned law of the Belgorod area the subject of innovative activity is defined as «.fizicheskie persons, legal bodies irrespective of their organisation-legal forms and the patterns of ownership, carrying out innovative activity in territory of the Belgorod area.».

Innovative activity in the Russian Federation is carried out not only Russian legal and physical persons, but also foreign legal and physical persons, their associations, individual businessmen. Hence, restriction at legislative level of subject structure of innovative activity can become an obstacle for its realisation.

In the current legislation of the foreign states distinction in the approach to concept definition «the subject of innovative activity» also is observed.

So, according to the Law of Ukraine «About innovative activity», stateless persons, the associations of these persons spending in Ukraine innovative activity and (or) involving property and intellectual values, putting own or borrowed means in realisation in Ukraine innovative projects [138] can be subjects of innovative activity physical and (or) legal bodies of Ukraine, physical and (or) legal bodies of the foreign states.

In the Republic Kazakhstan Law «About innovative activity [139]» following definition is resulted: subjects of innovative activity - physical and (or) the legal bodies who are carrying out innovative activity. In turn innovative activity represents use and introduction of innovations in manufacture.

There is no unity in understanding of a being of a category «the subject of innovative activity» and among scientists.

For example, E.A.Mardanshina offers following definition of concept: «... The subject of innovative activity» is the subject of law possessing the rights and duties, the property base, participating in realisation, the organisation and regulation of innovative activity izaregistrirovannyj in a statutory order...)) [140].

The made definition is represented not absolutely successful as the author offers as an attributive sign of the subject of innovative activity its legitimation in a statutory order. However actually innovative activity can be carried out and other persons who have been not registered properly, and thus the legislation does not make the demand about their registration as an obligatory sign. So, the innovative product can be created by the scientists who do not have the status of the individual businessman.

At the same time O.V.Gutnikov carries to number of subjects of innovative activity of all persons in which relation measures of the state support, statutory are carried out, and the persons who have received the positive expert judgement of corresponding enforcement authority about character of activity of the given person [141]. Thereby it is offered to establish dependence of innovative activity of separate subjects on expert establishments or the fact of the state stimulation, that as contradicts the legislation.

According to N.M.Frolovoj, criterion of the subject of innovative activity is the property or personal non-property right to object which arises at the authorised person under the law or under the contract and which makes sure the corresponding document (the patent, the licence, etc.) [142]. Owners of the specified right get the status of the subject of innovative activity. Such narrowing of a circle of subjects and dependence of the status of the subject on presence of the corresponding document as a whole excludes from their number of the persons who have carried out activity concerning objects, not carried legislatively to number protected by special documents.

A.A.Drueva, fairly confuting the given position, specifies, that possibility to realise, introduction, kommertsializatsiju the innovative product deprived of a sign ohranosposobnosti, is a lack. Also it is necessary to consider, that a main objective of innovative activity if and not always, reception of profit on realisation of an innovative product without fail aiming at it kommertsializatsiju is. The possession the managing subject the property or personal non-property right not always testifies to intentions of realisation of the granted right [143].

Subjects of innovative activity have similarities to subjects of enterprise activity since possess the complex legal personality, the separate property which represents a basis of independent property responsibility, combine conducting innovative activity and a management of it, and also, as a rule, are registered in a statutory order. Difference is absence of requirements to make such additional actions, as licence reception, the permission to realisation of innovative activity, with rare exception.

Defining a specific variety of subjects of innovative activity, it is necessary to notice, that is not established the uniform, generated approach to the given question.

The subject of innovative activity is an obligatory actively operating participant of innovative activity who carries out innovative activity, has interest and is capable to affect development and end of the public relations arising concerning realisation of innovative activity.

Having apprehended offered in the Modelling innovative code of the countries - of participants of the CIS and having generalised it, it is possible to divide two-level structure of subjects of innovative activity of the persons connected with investment activity, on:

- Carrying out scientific and research activity on creation of innovations, including in this group of directly authors and the legal bodies, creating an innovative product;

- Owners of exclusive rights to the results of intellectual activity used in an innovation;

- Physical and legal bodies, their associations which are carrying out introduction of an innovative product in a civil (economic) turn;

- Subjects of an innovative infrastructure (technoparks, business incubators, the centres of a transfer of technologies, venture funds, etc.);

- Others physical and the legal bodies promoting maintenance of innovative activity (banks, the insurance and consulting companies, establishments of formation, etc.).

Considering activity on creation of uniform technology in a context of its financing, i.e. from the point of view of an investment of investments, we notice, that the subject structure of investment activity is much more detailed concretised in the special "investment" legislation.

So, the Law of RSFSR on investment activity to corresponding subjects carries «... Investors, customers, executors of works, users of objects of investment activity, and also suppliers, legal bodies (the bank, insurance and intermediary organisations, investment stock exchanges) and other participants of investment process.».

In the Federal act about investment activity in the form of capital investments the circle of subjects includes «.investorov, customers, contractors, users of objects of capital investments and other persons.».

As a whole the subject structure provided by two acts, coincides, however inclusion in the Law of RSFSR in addition legal bodies - the bank, insurance, intermediary organisations, investment stock exchanges and the same as and in the Federal act about investment activity in the form of capital investments of other persons - deprives of concreteness the list of participants a little.

Aspiring to concretise subject structure of participants, V.N.Lisitsa, for example, it is simple under other persons understands those bank, insurance, intermediary and other organisations [144].

Considering, that the subject structure of investment activity interests us only in a context of its parity with subjects of activity on creation of uniform technology, we not begin to direct attention to the scientific-theoretical researches devoted to it specially.

Having defined, that activity on creation of uniform technology is simultaneously and design, we will direct attention to a circle of its subjects.

Classifying subjects of investment activity, V.D.Perevalov and D.V.Gribanov, for example, carry the persons who are carrying out design activity, to specialised subjects of investment activity [145].

In connection with modification of the legislation since 2014 among subjects of enterprise legal relations there were specialised societies of design financing [146] which are authorised to let out bonds for investment of the obtained money resources in realised projects.

The Governmental order mentioned above № 1050 provides from 15.10.2016 a specialised circle of subjects of management of the design activity which is carried out by the Government of the Russian Federation which, in our opinion, cannot be applied with a view of activity on creation of result in the form of uniform technology not only private, but also public character as it is directed exclusively on a regulation of internal structure of design bodies of the Government.

Thus, having generalised possible variants of approaches to standard regulation and considering presence of the factors revealed by us, we consider:

1. There are legal grounds to extend positions about subject structure of innovative, design and investment activity to activity on creation of uniform technology

2. Considering specificity of such subjects as the organizer of creation of uniform technology, developers of elements entering into uniform technology and users of uniform technology, we consider necessary to allocate and carry out independent research of features of their legal status.

3. Standard regulation of investment activity provides presence along with the investor of the independent subject - the customer who, being is authorised on that by the investor, realises the investment project. Coincidence in one person of the investor and the customer, no less than other combination of subjects if it does not conflict to the concluded contracts is thus supposed.

3.2.

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A source: KASULINA VLAD VLADIMIROVNA. Uniform technology as object of civil-law regulation. The DISSERTATION On competition of a scientific degree of the master of laws. Moscow - 2017. 2017

More on topic 3.1. Concept and specificity of subject structure of legal relations on creation and application of uniform technology:

  1. Chapter 3. GRAZHDANSKO - the LEGAL STATUS of SUBJECTS of LEGAL RELATIONS ON CREATION, LEGALIZATIONS, to USE And APPLICATION of UNIFORM TECHNOLOGY
  2. Civil-law position of the person who have organised Creation of uniform technology
  3. 2.1. Structure of the elements forming the right to uniform technology
  4. features of a legal status of users Uniform technology
  5. Legislativnye the signs forming a legal design Uniform technology
  6. G razhdansko - a legal status of developers of results Intellectual activity as a part of uniform technology
  7. legal fastening of the rights to uniform technology
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  10. Services as an international trade subject: concept, essence, specificity
  11. creation of system of the uniform patent, by use of one of patent departments of one of the state-participants of the Customs union of Russia, Belarus and Kazakhstan, as a variant of the decision of a problem of the uniform patent Protection of inventions.
  12. Three-level system of the legislation in a federative state: concept, structure and specificity
  13. CHAPTER 2. THE MAINTENANCE OF THE RIGHT TO UNIFORM TECHNOLOGY
  14. Specificity of application of general terms of proceeding at disposal of legal proceeding about application of forced measures of medical character
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  20. the analysis and prospects of application of non-uniform designs