从药品平行进口案例看中国法的正义价值选择

서지정보

· 발행기관 : 부산대학교 중국전략연구소
· 수록지 정보 : Journal of China Studies / 21권 / 4호 / 65 ~ 79페이지
· 저자명 : 주령커, 오은지, Xu Xi

초록

The law can be seen as the choices of values by majority of people in the country. Generally, certain legal procedures are prescribed in order to realize the people’s choice of values. These legal procedures are called the procedural justice, and realizing the value the majority of people seek is called the entity justice. Ideally, the entity justice must be followed by the procedural justice. In practice however, sometimes it does not work in that way. In the case that the procedural justice and the entity justice do not match, how should the Chinese government make a choice? In this study this issue will be discussed by analyzing the recent example of parallel import of drugs in China.
According to the Chinese Drug Management Act, if an individual or a corporate body wants to import a drug, he or she must receive an inspection report on the safety, treatment, and ingredients of the drug by the State Council of China. If the individual or a corporate body do not go through the inspection by government-related agencies or import the drugs that are not permitted to import, he or she could result in severe penalties up to imprisonment for the sale of counterfeit drugs. As parallel imports are imported without approval from officials, an import permission cannot be obtained from the government. Therefore, it is considered as a violation of the law under the current Chinese criminal law. In practice however, Chinese domestic medical products have poor remedial value and the price of the products with formal permission is very high. Thus, some heavy patients have no other choices but to seek parallel imported products in order to survive. In this case, punishing the heavy patients for purchasing the parallel imported products would be against the value of the public, but if not, it would be against the law. That is, in some parallel import cases, there is an inconsistency between the procedural justice and the entity justice. This study used a recent case of parallel imported of drugs in China to exam how the Chinese criminal justice system reaches a verdict on this issue.
In this study, we found that current Chinese criminal justice system has three problems dealing with drug-related parallel import cases: First, when the law is vaguely defined, the case must be judged by the judge's discretion, and there were problems where similar cases were found differently due to different personal values of the judges. Second, although procedures must be independent, parallel drug import cases have been heavily influenced by the media in dealing with cases because they are highly publicized cases. Third, the procedural justice or the definition of result, which one is more important than either is a matter of philosophy of law, and the Chinese government currently tend to uphold the procedural justice. Consequentially, judicial authorities tend to seek formal definitions that seem to realize the procedural justice when dealing with problems. It should be Pointed out at the same time that the efficiency and cost considerations cannot support the "quasi-judicial" position of the PRB, either system design abroad. To solve the above problems need combined with Chinese Intellectual Property trial pilot experience and development trends of the reform of the judicial system, the implementation of Intellectual Property Rights trial fairness and efficiency, strengthen the exclusive jurisdiction, and the function of substantive patent court.

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