Research On The Right Of Gene Right In The Legislative Protection Of Genetic Resources

Genetic resource is an important strategic material of our country and plays an important role in economic development.The value of genetic resources mainly reflects that they are raw materials for medical,agricultural and pharmaceutical biotechnology innovation.For example,using genetic engineering,wild animals and plants or their extracts can be used in bio-pharmaceutical,producing huge economic benefits,"artemisinin" is the case.It is precisely because of the huge economic value of genetic resources,which leads to the lack of genetic resources but the advanced biotechnology developed countries to carry out various forms of biological plunder on the developing countries which are rich in genetic resources but not able to develop and utilize them,which causes some valuable biological resources in developing countries to be excavated and hunted,and then leads to the destruction of biological diversity.In order to stop this phenomenon,the two camps of developing and developed countries reached the Convention on biological diversity through many consultations.The acquisition and benefit sharing of genetic resources is one of the three goals of the Convention.In order to better implement the Convention on biological diversity and curb the acts of"biological piracy",many countries have formulated domestic legislation to integrate with it.Developed countries focus on the utilization and management of genetic resources,while developing countries focus more on the protection and management.China is one of the countries with the richest biodiversity,and also the largest developing country in the world.But in the future,China is not only a provider of genetic resources,but also a user of genetic resources.The 12th Five Year Plan and the establishment of life science research center lay the foundation for the development of biotechnology in China.Since 2011,China’s biotechnology research has been fruitful.Therefore,our country can legislate on the utilization and management of genetic resources,instead of defending against foreign "biological piracy".This paper puts forward the idea of establishing genetic rights to protect genetic resources.By claiming genetic rights,genetic rights holders(including genetic resources rights holders)can efficiently and conveniently solve the problems in the acquisition and benefit sharing of genetic resources.This paper is divided into four parts.The first part is the introduction,which briefly summarizes the research status of genetic resources protection and genetic rights in China.According to the research status and the comparison of the advantages and disadvantages of the legislative models in various countries,it introduces the reasons for choosing the private law legislative model of establishing genetic rights under the property rights in civil law.The second part is the main body of this paper,according to the new theory of right construction,it proves the gene right and constructs the content of gene right.Because the definition of genetic resources is easy to confuse the nature of the intangible property of genetic resources with the biological resources as the carrier,it is proposed to replace the "genetic resources right" with "gene right",and analyze and define "gene" and "gene right" from biology and the source of "gene".According to the theory of right structure,it is proved that the frequent occurrence of "biological piracy" and the development of biotechnology need to put forward the requirements of establishing a convenient and efficient right system of genetic resources.When genetic resources as intangible property meet the requirements of scarcity,economic value,justice,compatibility of legal system and the possibility of realization of rights,it is proposed to take genetic resources as a property right It is placed under the property right in the civil law and juxtaposed with intellectual property,real right and creditor’s right.According to the theory of right construction,gene right is constructed from three aspects:subject,object and content.The subject of gene right can be divided into two categories according to different gene sources.The right of natural gene belongs to the state or collective,while the artificial gene belongs to the reformer,which can make natural person,legal person,state or other organizations.The object of gene right is genetic information,such as base sequence.Biological resource is the natural carrier but not the only carrier of gene.There are six property rights under the right bundle of gene right,which are sample extraction right,copy right,first fixed right,use right and publicity right;four personality rights,which are naming right,signature right,prior informed consent right and protection of gene integrity right.The third part is the introduction of the problems and solutions in the process of gene right certification.The problems encountered are that the dual attributes of gene personality and property lead to the dilemma of gene right placement in the right system,the human centered gene right challenges the integrity of other biological genes,and the practice of intellectual property law protection of genetic resources challenges the existence of gene right.In view of the above problems,the author puts forward the ways to explain the above problems,which are to distinguish personality rights and property rights from power sources,to endow non-human biological protection gene integrity rights to be exercised by gene owners,and to distinguish the source and scope of gene and intellectual product rights.The fourth part is the prospect of the development of genetic rights.It mainly summarizes the problems solved in the legislation of genetic rights and the unsolved problems,and looks forward to the future development of genetic rights,hoping that this paper can give some inspiration to the later researchers of genetic rights.The innovation of this paper is to put forward the concept of gene right to protect genetic resources.The current discussion on gene right is limited to human gene,and the concept of gene includes not only human gene,but also other biological genes such as other animals,plants and microorganisms.Therefore,the gene right can include the gene right of human to human and the biological property it owns.Genetic resources refer to genetic materials with actual or potential value,including those containing genetic units in animals,plants and microorganisms.Biological resources of genetic material knowledge without practical or potential value are not genetic resources.In fact,the concept of gene and genetic resources is inclusive,and genetic resources are genes with actual or potential value.The construction of genetic rights can protect genetic resources in an all-round way without dead angle,and avoid the trouble of recording genetic resources in advance when exercising the rights of genetic resources.At the same time,when the gene does not have value,the gene right is in the silence stage,and it is activated automatically when the gene actually produces value,which avoids the "identity" transformation of explaining the common biological resources and genetic resources in the future because of the research findings.