论药品专利许可与公共健康权

禽流感在全球的蔓延给人类的生命健康亮起红灯,同时也再次引起学术界对公共健康与药品专利强制许可问题的热烈讨论。面对作为私权的药品专利和作为人权的公共健康,究竟应该怎样处理两者的关系,这不仅关系到法律制度层面的问题,而且更会涉及社会历史、政治经济、文化传统等许多层面。如果缺乏对这种复杂关系的深刻理解和正确把握,则不能确立科学合理地解决这种矛盾的原则和方式。本文在考察国际社会实践和各国立法经验的基础上,从社会历史、政治经济、哲学思想以及法律制度等多重角度对公共健康与药品专利强制许可的关系进行广泛深入的探讨,由此揭示这种关系的本质和决定因素,并在此基础之上,提出解决问题的基本原则和法律途径。

On the Compulsory License of Patented Medicine and Public Health

While the Bird-flu turns on red-light against human health,it again causes a great discussion on the issue concerning compulsory license of patented medicine and public health around the academic circle.Facing up the relationship between the patented medicine as private rights and the public health as human rights,how could we deal with them? Not only has it been concerned with context of legal system,but also with many other contexts of social history,politic and economy,as well as cultural traditions.We can not establish the principles and methods by which we correctly and reasonably solve the problems unless we have a deep understanding and acorrect holding of these complicate relationships.This article,on the basis a broad examination about international social practice and the legislations in various foreign countries,from the view-points of social history,political economy and philosophical thoughts,made a thorough examination to the relationship between patented medicine and public health,and hereby revealed the significance of the relationship and decisive elements contained in it,and finally the author provided several basic principles and legal methods to solve the problems for Chinese lawmakers and judicial practice.