| The biology genetic resources are the source of human survival and development. One the one hand man's quest for genetic resources increase, on the other hand it causes the loss of genetic resources in the course of human development with the development of biological technology. As the biology genetic resource became the scarce resources, the intense conflict happened in human being in the process of utilizing genetic resources, the developing country genetic resources is rich but the developed country's is poor, the developed country relied on their fund and the technology to plagiarize the developing country genetic resources and to apply patent protection to it, which has hindered the developing country'development of technology and economic and brought the challenge to the traditional legal system. At present, as the developing country, Chinese legislation is blank in accessing to genetic resources, benefit-sharing system and gene protection aspect. The article takes the loss of genetic resources China Tibet as the background and analyzes the urgency of preventing genetic resources to running off. After reviewing the principle of the international agreements and the legal standpoint of main countries in genetic resources protection, the author analyze the limitation of existing patent system in genetic resources protection and suggest that protect the genetic resources by the special legal system.The article is composed of the introduction, the main text and the conclusion and the main text divides into four chapters: First chapter: fundamental cognition of the biology genetic resources and Tibet background of the biology genetic resources. The chapter elaborates the implication and characteristic of genetic resources and the richness of Tibet biology genetic resources. It is the technologic background of this article.Second chapter: the urgency of preventing genetic resources to running off. This part analyze the urgency of preventing genetic resources to running off by the scope, the way, the reason and the serious condition in the loss of genetic resources. It is the legal matter that must be solved in the article.Third chapter: the analysis of existing genetic resources legal system. First section demonstrates the sovereignty establishment of genetic resources and Chinese legal status in biology genetic resources. Second section analyzes the principles and the rules of genetic resources that is established by "CBD", "ITPGR" and "TRIPS", and analyze the standpoint that china should adopt. Third section takes European Union, US and India as the example to analyze them standpoint in the legal system of biology genetic resources, which should be referenced in legislation of genetic resources Chinese. Fourth section analyzes Chinese the limitation and question in the legal system of genetic resources.Fourth chapter: how to conceive the legal system of biology genetic resources. First section after analyzing how to protect genetic resources by the patent system and the business secret system, the author considers that genetic resources protection in the present intellectual property rights system exist significant defect and is unconformable to Chinese condition presently, so the author proposes that establish special legal system to protect genetic resources. Second section proposes that the basic principle of genetic resources'legal system is the national sovereignty principle, the sustainable development principle and the benefit profit fair share principle. Third and four sections elaborate the subject and the object, the right and the duty in legal relationship of biology genetic resources. Fifth section proposes to establish the legal system of the genetic resources protection, this legal system include Condominium system, Prior informed consent System, the System Benefit Profit Fair Share, Heredity Resources Research Results Protection System, Specially propose the heredity resources research results protection should profit from the system which the land proprietary separated the usufruct in Chinese legal rules, i.e the proprietary of genetic resources separated its usufruct, the user obtains the usufruct which derived from the proprietary of genetic resources, consequently unify the national interest and the personal interest. |
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