“VEKLURY”
摘要
The right to inspect documents and the right to make a statement are guaranteed components of the status of a party, which is manifested in the norms of specialized law – typically in the norms of administrative proceedings – and derive directly from Art. XXIV(1) Fundamental Law. They are hence essential elements of the status as a party and the right to a fair trial before a public authority. The infringement of the statutory right to inspect documents constitutes a restriction of the right to a fair trial before a public authority insofar as it derogates the party’s right to make a statement and its right to defence. The Patent Act does not exclude the application of Sec. 10 Code of General Administrative Procedure (GAP) declaring the definition of a party, nor does it derogate it. The patentee whose exclusive right to the exploitation of a patent is the subject of a public health compulsory licensing (Sec. 33/B Patent Act) is undoubtedly a legal person “whose rights or lawful interests are directly affected by the case” [Sec. 10(1) GAP]. Section 10(2) GAP cannot be interpreted as meaning that a special act or government decree as lex specialis can automatically, without an express statutory provision, exclude the application of the definition of a party under Sec. 10(1) GAP. The commencement of the breach of the exclusive right to exploitation, which is the essence of a patent, not only establishes the status as a party, but also necessarily makes the patentee and the applicant for the public health compulsory licence adverse parties. Although the Patent Act, by excluding the application of Sec. 5(1) GAP, restricts the right to make a statement (which is a constitutionally significant element of a party’s legal status), as it cannot be exercised “at any time”, does not exclude said right completely. Such follows from Secs. 47(3) and 83/I(1) Patent Act. The denial of a patentee’s status as a party as well as its right to make a statement in proceedings for a public health compulsory licence deprive the patentee of the possibility of defence in proceedings, which could have a potentially adverse outcome for it, and therefore does not comply with the right to a fair trial before the public authority under Art. XXIV(1) Fundamental Law. When assessing the rapidity of a public health compulsory licence procedure, the protection against an epidemic, and in particular access to sufficient quantities of essential health supplies, may be taken into account as a legitimate aim of a restriction of a fundamental right which is not an absolute right, which may be justified by the right to life protected by Art. II Fundamental Law and the right to health protected by Art. XX(1) Fundamental Law. Such is relevant for the assessment of the rapidity.