| Summary: | 碩士 === 東吳大學 === 法律學系 === 96 === Since ancient history, people have continuously explored the origin of mankind and the secrets of life, elderliness, illness, death, thinking, ideology and behavior. As scientists gradually solve the codes of life about molecules, chromosomes, genes and promoters, they are applied on the ultimate purposes such as extension, reconstruction and even creation of live. Information technology at the end of the 20th century has matured and developed the capability of large-volume storage and high-speed calculation and processing of information. When biology is combined with technology, the construction of large-scale biological information database is inevitable. However, the significant development of such biological technology is like opening the Pandora’s Box. Material challenges and shocks are brought to the existing society components, ethics, ethical values, and even the legal system.
For whichever purposes, the collection, analysis, storage and use of human biological information have infringed the self-determination rights of providers of biological information. According to the spirit of the Explanation Note No. 603 of the Constitutional Judge of the Judicial Yuan, such infringement is part of the privacy right protected by the Constitution. Thus the establishment of this type of database should not be carried out without consideration of the legal system under the constitutional structure. This thesis intends to discuss the necessity for the establishment of human biological information database in our country based on the trace of the above-mentioned development of genetic technology. From the view of proper legal procedure, this thesis will review whether existing legislation such as the “DNA Sampling Rules” and the “Computer Processed Date Protection Act” corresponds to the spirit of protecting people’s privacy as announced by the Constitutional Judge. It will also discuss the question as to how and which legislation should be established in order to achieve the purpose of protecting people’s basic rights if such type of database needs to be established.
Chapter one of this thesis will give a brief introduction of the scope and method of research. Chapter 2 will define the terms such as “DNA”, “gene”, “genetic information” and “database” and will briefly explain the technology related to molecule biology and how genes are used in technology. This will serve as the basis for the subsequent portions of this article. Chapter 3 will provide brief analysis of the development and contents of privacy rights. The concept of privacy rights will be brought into juridical interpretation and real case support in order to extract the legal position of genetic information and provisions related to the protection of privacy. Since humans have decoded the secrets of DNA, the DNA technology continued to develop and various governments and research instructions worldwide hold more and more DNA samples and information of people. For various purposes, they have also established related databases. Thus Chapter 4 of this article will introduce the situation of the establishment of human genetic database worldwide, relevant risks of genetic technology and the ethical and legal issues that may arise. Chapter 5 will discuss the possibility of application between the establishment of genetic database and the principle of proper legal procedure and will provide a review of the existing legislation of our country. Finally, Chapter 6, as a conclusion, will suggest that the question be pondered upon from the viewpoint of procedural justice and will discuss the necessity and possibility of applying proper legal procedure. Only with the parallel and overlapping movements in substance and procedure will genetic privacy be fully protected.
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