Research On Criminal Law Regulation Of Human Organ Crimes In China

Subject to the modest and restrained concept of the criminal law,the current criminal regulation of PRC Criminal Law on human organ crimes is too concerned about the expansion of criminal law and the extension of extension of crime circle.As a result,the criminal regulation on human organ crimes as provided in “Amendment VIII to the Criminal Law” stresses on ex post adjustment,which shows a certain gap with the concept of "preventive legislation" under the criminal law in force.The legislation on human organ crimes enacted from this lacks of activation and pertinence,including lack of directivity in charge setup,over-principled constituent elements,lack of clarity in circumstance for sentencing,and the concept of preventive punishment not fully fused into the penalty configuration.In this paper,the deficiencies and defects of Chinese legislation on human organ crimes are examined in an organized way along the veins of “crime definition-current situation of regulation-lack of regulation-modification of criminal law” through comparative research and interdisciplinary research from the research perspective of criminal jurisprudence,and a specific legislative strategy as to criminal regulation of human organ crimes in future is put forward,in an attempt to push the criminal regulation of human organ crimes in China to a more systematic,comprehensive,sophisticated and fine level,finally achieving the end of good governance and good law.Section I presents the connotation,extension and type of human organ crimes from a general picture,and identifies the research premise for human organ crimes.First,the concept and legal attributes of human organ are clarified from the interdisciplinary perspective.Human organ shares the characteristics and attributes of human beings and objects.Second,the concept,characteristics and types of human organ crimes are sorted in an organized way.In light of the current development of human organ transplantation technique and the reality of human organ crimes,the concept of human organ crimes can be specifically defined as: a crime that is committed by individual or organization in the form of harvesting or trafficking human organs and that causes a material hazard to society.Human organ crime is committed by means of medical technology that is materially against social ethics and materially threatens the legal interests in person and legal interests in order.Today,human organ crimes mainly include crime of harvesting human organ,crime of trafficking human organs,and new human organ crimes accompanied by the development of homologous organ transplantation technique.Finally,the necessity for modifying the criminal regulation of China's human organ crimes is discussed.Human organ crimes is of material hazard to society,and the development of medical technology is expected to result in more new human organ crimes,thus revealing a grim trend for human organ crimes.In this concern,the criminal law is supposed to effectively regulate human organ crimes with greater hazard and effectively exercise its regulatory function to society without going contrary to the modest and restrained principle.Section II describes the current situation of the criminal regulation of human organ crimes in China in an organized way to provide samples and underline the problems related to the criminal regulation of human organ crimes in China.First,the legislative regulation course of human organ crimes after the founding of the PRC is identified and evaluated.Our criminal regulation of human organ crimes marks the transition from “Nebenstrafrecht-dominated,criminal punishment supported” to “criminal law modification based on human organ crimes”.Second,the human organ criminal acts that has been clearly regulated and those have not yet clearly regulated by PRC criminal law in force are identified from the realistic horizontal perspective.Despite the fact that China has clearly regulated the crime of harvesting human organ,a part of crime of trafficking human organs and new human organ crimes have not yet been clearly regulated.From legislation wise,it is necessary to make the criminal law net of human organ crimes more rigorous.Section III accurately investigates existing problems in the criminal regulation of human organ crimes in China.By examining penal code,“Amendment VIII to the Criminal Law” and other substantive laws,it is found that the legislation concept of Chinese criminal law has been lagged behind medical technology at the beginning of the regulation of human organ crimes,and the utilitarian,urgent and emergent nature of setup,the simplification of criminal policy,and the harmonization of legislation have led to imprecision of criminal law net and exposed less “crimes”,loose “substance” and harsh “punishment”.In this paper,the huge obstacles to “real status” and “necessary purpose” of the criminal regulation of human organ crimes in force are examined based on criminal law theories and case study,it is found that the existing problems with respect to the criminal regulation of human organ crimes in China include: first,the setup system of crimes remains to be modified,Section 2 of “Amendment VIII to the Criminal Law” provides an unclear directivity and the practice of classifying human organ crimes into the crimes of violating personal rights and democratic rights vested in citizens also reveals the irrationality of classification of crimes.Second,the criterion for crime establishment is not clear enough.From the view of behavioral objects,the criminal law does not clearly define the scope of human organs and the scope of “behavior objects” in the crime of organizing and trafficking human organs cannot provide an effective guide for criminal justice practice;from the view of behavioral subjects,the scope of punishment of criminal subjects is too narrow,so that the organization cannot be penalized as the subject to human organ crimes.Third,the circumstance for sentencing remains to be clarified,the criminal law and its related judicial interpretations have not clearly provide the criterion for gravity of the circumstances of the crime of organizing and trafficking human organs,for the crime involving “special subjects” including medical staff,the aggravating circumstance has not yet been clarified,which may be likely to lead to “different judgments on the same case” in judicial practice;fourth,there are deficiencies in the allocation of criminal law configuration in that the property setup of human organ crimes is not established and no punishment against qualifications is added,which is substantially different from the basic spirit and concept of preventive punishment.Section IV gains an insight into the suggestions for the criminal regulation of human organ crimes in China.As the legislation deficiencies involve setup of crimes,crime establishment,circumstance for sentencing and penalty configuration,what we need is to deepen the mode of regulation,make the criminal law net of human organ crimes more rigorous,and modify the penalty configuration system for human organ crimes.Accordingly,the path of modifying the regulation of human organ crimes is described from the perspective of criminal legislation.First,new crimes are added appropriately for crime of trafficking human organs and new human organ crimes that have not yet been clarified by our criminal regulation by cross-strait observation of exterritorial legislation practice of human organ crimes,and the positioning of human organ crimes in specific provisions of criminal law is optimized based on legal interests in order and legal interests in person.Second,as to the criterion for crime establishment,the scope of human organ is clarified,the scope of behavior object in the crime of organizing and trafficking human organs is appropriately expanded,the organization is included as one of the subjects who are involved in human organ crimes,and juridical practice will be given a specific norm guidance from the legislation.Third,the ruling over gravity of the circumstances will be made in details,and the aggravating circumstance that applies to medical staff and other “special subjects” will be clarified by considering the hazard of human organ crimes to society.Forth,to configure punishment against freedom,the active coordination of criminal prevention and criminal attack can be achieved by using fine penalty,adding punishment against qualifications and other preventive punishment.With a view to the human organ crimes that have been criminalized by “Amendment VIII to the Criminal Law”,the current situation of criminal regulation of human organ crimes in China,the lack of criminal legislation and the appropriate countermeasures are discussed here in a structured way with criminal legislation regulation as the entry point.However,these practices in essence are ex post treatment,the legislative concept of rigorous law net and modification of criminal punishment is also subject to the modest and restrained concept of the criminal law,human rights protection and other concepts of criminal law.From comprehensive governance wise,the long-term management of human organ crimes depends on the balance of the supply and demand contradictions on human organs,the establishment of human organ donation system,the modification of prepositional law configuration,the organic coordination of criminal law and medicine science,and the cultivation of citizens' thinking of rule of law and their law-abiding consciousness.Therefore,this paper only discusses from the criminal legislation perspective,the response of criminal law to human organ crimes and the criminal governance of human organ crimes remain as open-ended problems...