The Relationship Between Organ Transplant And Criminal Act From The Aspect Of Law

With the development of society and progress of Medical science, organ transplant have already become an effective method to regain life. Since China has no uniformed legislation about organ transplant, organ transplant has caused many ethical problems and criminal acts without the protection of laws. In this thesis, the author studies legislation on organ transplant and criminal acts about it in details. The author indicates the legislations about organ transplant of other countries on the basis of the actual conditions in our country, and discusses the contents and forms in legislation of organ transplant. The author thinks crime of organ transplant should be legislated as a sort crime in criminal law. Furthermore, the author discusses the elements of the crime and its manifestationThis thesis consists of four parts, discussing on the base of legislation on organ transplant, the definition and elements of crime of organ transplant, new kinds of crime caused by organ transplant, related criminal acts of organ transplant.Part one: comparison of legislations on organ transplant between China and the other countries.First of all, most countries in the world which carry out organ transplant, such as France England Singapore and other countries, have almost completed their legislative work in organ transplantation before the 1980s, according to their actual social situations and the development of organ transplant, and have drawn up a relatively complete organ transplant law. Moreover, organ transplant law can be roughly divided into two types: one is uniform, which makes an uniform law for all kinds of organ transplants, such as the British "Human Organ Transplant Act", the other is distributed, which makes different laws for different organ transplants, such as Japanese "Cornea transplants Law." Secondly, organ transplant in China began from the early 1960s,ten years later than the other countries, but develop very fast. At present, organ transplant legislation in China is uniformed in general, and has become scale. As early as 1986, Taiwan region of our country has published the "Human Organ Transplant Ordinance". In 2003,the Committee of People's Congress in Shenzhen got through the "Human Organ Transplant and donations Ordinance in Shenzhen economic zones", which is the first local regulation on the transplant and donation of organ in Mainland. In the March 21st 2007,Chinese Premier Jiabao Wen examined and approved the "Human Organ Transplant Ordinance (draft)"basically. The adoption of the draft has great significance in these aspect: Standardizing the management of human organ transplant to ensure medical quality and security; safeguarding the legitimate rights and interests of organ donors, patients, medical institutions and medical staff; bringing more benefits to mankind. Although the Human Organ Transplant legislation activities are being put on the agenda, and has begun to take shape, the current organ transplant law in our Country is not completely unified and perfect. So, in this part, the author discusses the organ transplant legislation according to the current conditions of China including the purpose principle and procedures of organ transplant.Part two: the definition and elements of crime of organ transplantThe so-called organ transplantation crime is the general name of behaviors that are harmful to the society. Generally speaking, it refers to the general name of behaviors of the corporations and individuals involved in the implementation that is a serious danger to society of the organ transplant. Because organ transplantation is a serious crime that harms society, in this part, I believe that organ transplant crime is fit for the constitutive elements of the criminal law provisions. Organ transplantation should be a new category of crime as a crime in their penal norms. Due to the special nature of organ transplant crimes, they have unique criminal necessary items, which are the criminal subjective, which include not only the general body but also special one. The general objective is referred to the body whose age is above criminal responsibility age and who can be responsible for his behaviors. The special body includes doctors and related hospitals; in the crime subjective side, the actors are required to have subjective intent or negligence; in the crime objective, the person committing the illegal act of organ transplantation should be a criminal violation of health and safety and the lives of normal medical management activities.Part three: new kinds of crime caused by organ transplantIn recent years, because of the imbalance of organ supply and demand, the organ transplant crimes have occurred from time to time, and are showing more and more new forms. New types of crimes that organ transplant trigger are that people carry about the illegal behavior which is a serious danger to society but is not in the provisions of China's Criminal Law, for the purpose of attaining human organs, such as the sale of human organs, illegal removal of human organs, making youngsters and the mentally ill actors to be the donors for organ transplants. The crime is not a simple form of organ transplant crime, but the general name of the crimes in the process of before, during and after organ transplantation related with the statutory crime and the criminal acts which are serious harmful to the society. In my view, given the special nature and great social harms of organ transplant crimes, these new criminal acts should be standardized as the specific category of crimes in law.Part four: crimes concerning organ-transplantation People's health and freedom will be violated when crime concerning organ-transplantation is committed. To fight against the organ-transplantation crimes, the law-officer should give full emphasis and employment to the provisions existing in the criminal law in addition to making law that aims specially at the punishment to such crimes. Organ-transplantation always involves other crimes. For example, as to organ theft, cheating or robbery, which caused grievous bodily harms or deaths, these actions should be treated as intentioned-homicide and mayhem under item232 and item234 in the current criminal law; as to the malpractice or negligent treatment by the doctor, which caused grievous bodily harms or deaths of the organ-donor or organ- acceptor, these actions should be treated as medical accident under item335 in the current criminal law; while as to the illegal organ-transplantation operations conducted by people with no professional medical qualification or by the professionally medical worker without an organ-transplantation certificate, these actions should be treated as illegal medical practice under item 336 in the current criminal law. In this paper, the writer gave qualitative analysis on a couple of typical criminal relationships concerning organ-transplantation. In practice, it is difficult for the judicatories to judge the nature of crimes concerning organ-transplantation. So, it's of greatly practical significance to speed the making of criminal law concerning organ-transplantation and make the organ-transplantation move along the legal orbit.