受试者及其权利辨析

On Research Subjects and the Discrimination of Their Rights

受试者与被试验者是两个不同的法律主体,辨清二者的法律身份是明晰受试者权利的前提。受试者是医学人体试验合同的一方当事人,是献身医学研究事业和人类健康福祉的志愿者,享有知情同意权、补偿权、医治权、任意解除权等合同权利;这些权利既区别于受试者作为自然人的基本权利如生命权、健康权、隐私权等,也与被试验者的权利相异,因此受试者权利保护与被试验者权利保护指向不同法律路径:受试者权利保护的基本路径是《合同法》,被试验者权利保护的首要选择是《侵权责任法》。辩明受试者及其权利有助于受试者选择正确的法律救济途径。

Research subjects and testees are two different legal subjects, and the precondition of making the research subjects＇ rights clear is to distinguish their legal identity. Research subjects are one party in the contract of medical human trials, and the volunteers who devote themselves to the medical research cause and human health welfare as well. Therefore, they enjoy the following contract rights, such as informed consent right ,compensation right, heal right, and arbitrary termination right, etc., which are different from the fundamental rights of research subjects as natural persons such as life right,health fight and privacy right, and different from testees＇ rights at the same time. Thus, we should protect their rights in different legal means： research subjects rights in Contracts Law, and testees＇ rights in The Law of Liability for Infringement. Consequently, distinguishing research subjects and their rights is helpful for them to choose correct relief ways.