Research On Civil Rights Protection Of Gene Rights

Due to the rapid development of biotechnology,humans have entered the era of molecular biology.The biological nature of the human gene is a DNA fragment with genetic effects,which can reflect the genetic information of an individual’s life and commend the personality of the subject.However,in reality,it is not uncommon to rely on biotechnology to operate on human genes,and events that infringe on the interests of genetic personality have already been reported in the press.In view of the fact that genes are independent physical entities in nature,the legal study of genes should no longer depend on human tissues such as cells and blood.From the current point of view,the definition of the human gene’s legal status in the field of civil law can be roughly divided into the following three types: First,the object of property rights.The theory holds that genes are the basic constituent units of DNA and are objective physical entities.When they exist independently of the human body,they can be regarded as objects and become objects of real rights;second,objects of personal rights.According to this theory,although a gene is a physical entity,the base sequence of a gene contains genetic information and reflects all the secrets of each person’s body.Therefore,genes can recognize personality;third,the object of patent rights.The doctrine holds that genes,as a kind of genetic resources,are the common wealth of human beings,and have the properties of public goods,but genes also have the properties of private goods.Therefore,genes have the commonality of intellectual property objects: they are both public and private.This commonality makes it possible to incorporate human genes into patented objects.It should be said that the above three theories have their own advantages,but the disadvantage lies in ignoring that genes have both material and information characteristics,and a single object protection model is not enough to protect various rights on genes.And John Locke’s "property labor theory" proves that a person can enjoy both personality and property interests in genes,and that genetic personality interests and property interests occur at the same time.Therefore,genes are a complex of legal attributes with both personality and property.The provider’s genetic personality rights should be protected first,and when the conditions for granting a gene patent are met,considerations based on the principle of equal sharing of interests should be protected,while the developer’s Gene patent rights and providers’ gene property rights.By examining the foreign legal system,combined with the lack of genetic legislation in China,the status quo of biotechnology development,and the balance of interests of various parties,there are two specific models to choose from: First,the "Civil Code" confirms genetic rights,namely Drawing on the "Genetic Rights" model of the "French Civil Code",incorporating the protection of genetic personality rights into the "Civil Code(Personal Rights Code)",drawing on the benefit-sharing principles of the "Convention on Biological Diversity" and benefit sharing through gene patents To realize the provider ’ s genetic property rights,drawing on the restrictions of the Swiss Patent Law on the scope of patents,in the Patent Law,the object range of genetic patents will be further narrowed;second,the protection rules of genetic personality rights and property rights can be included In the future,the "Personal Information Protection Law" will stipulate uniformly the subject,object,content,exercise method,infringement determination,and responsibility for genetic rights.These two legislative approaches may more comprehensively protect the rights of genetically different stakeholders,and can promote the progress of genetic technology and the healthy development of society.