Study On The Body Property

The traditional civil law theory treats human as an absolute legal subject of rights which is against the outside world. In the period of low level of technology it is acceptable because of Because of its maintenance of dignity and security. As the rapid development of biomedical technology in the middle of last century which was represented by organ transplantation, a great deal of human tissues were removed from human bodies and implanted into others or turned in other items. It is necessary to acknowledge the following points: Firstly, these human tissue have values which are able to fulfill certain needs of mankind; secondly, the realization of these values shall be recognized by the law for their legitimacy, such as organ transplantation, blood transfusion; Thirdly, such activities take place between different subjects of human, which means transferability; Finally, most of them are rare resources. Transfer of rare resource between different subjects is the focus of legal institution of property, and the property nature of such tissue draws attention of law experts. While the practice goes ahead, our researchers remain disregarding those changing situations. This article tries to solve the following questions: is human tissue kind of property or not? If so, what's the criteria? How to overcome the ethical tragedy it might have that worried by many experts? This article takes four chapters to get over them.Chapter I briefly introduces the body property. At first we shall review the history of property institution that was instantly refreshed and enlarged as time goes on, pointing out that the concept of property is always on the move. The core of the legal institution of property is mainly to ease tensions between subjects and objects - a large number of people and limited resources, that's to say, the tensions of demand-supply relation of subjects as a result of access to resources in the competitive relationship. We can see that the transfer of limited resources is the focus of the institution of property. Nowadays, a number of human tissues are already in such a competitive relationship, the institution of property would play an important role in transferring such limited resource. To make someone who needs those tissues, we shall enlarge its transferability. Due to the unique source of such objects, someone deny the property nature of such things on the behalf of some ethical reasons. After study, we find it a specious argument. The falsification would be the job of the third chapter.Based on last chapter, chapter II takes seven typical human tissues for example to analyze their property nature. It can be seen that, organs, blood, human gametes, bone marrow, placenta, hair, nails are already wild used and transferred as a kind of property in the practice. Most of them belong to the strong property which can be obtained onerously. Through the specific analysis, I put forward a set of criteria that set the frontier of body property. It is worth noting that the organ shortage has something to do with the present mode of free access to organ donation. The success of Iran's onerous system tells us that it is not so called dangerous. Thus, the onerous mode attracts more and more attention.Chapter III talk about the onerous obtaining system represented by organs. As the great debate on the onerous obtaining of organs, I take it as example for discussion. As mentioned before, the significance of the property institute is to circulate resource among different subjects to achieve rational use. A high degree of tension between supply and demand and the existing shortcomings of the mechanism, the failure to fulfill the demand and the unfair distribution of benefits make us rethink the onerous mode. The analysis found that the reasons against the onerous mode are "instrumentalist", which are not quite persuasive. The future market of the dead could dismiss these questions. It would meet the needs while also in line with people's moral sentiments.Chapter IV attempts to improve the body property law in China, which is still organ-centered. By analyzing the practice of organ acquisition in China, I found that two major issues of free donation mode have its expressions in our country. The specific situation of this nation I propose a number of recommendations for improvement which might be useful in the future legislature.