The Ownership Of Cadaver And The Exertion Of It

With the rapid development of modern medicine, the cadaver is commonly used in this field. And the dispute it brings about is likely to intensify. Our jurisprudence has not always been paying attention to the use of cadaver, ignoring the research of property of the cadaver, which results in the lack of operational laws and regulations on this issue, and the lack of relatively unified point of view in theory. In this respect, shortage of legal norms is an important hinder factor, and theory filed is also lack of thorough study and inquiry on these questions. The shortage of exercisable legal norms and unified theoretical viewpoint make the supporting systems of cadaver use in China fall behind Taiwan China, not to mention western developed countries, the legal institution which could not satisfy social needs restricts the development of medical industry in China.In order to be consistent with the requirement of social development, China has found some local legislation for cadaver donation, but these legislations can not figure out the problems from its root. The author believes that, the research of legal property of cadaver, the determination of the subject of rights, the improvement of the rules of exertion of cadaver and the improvement of supporting systems of cadaver use are the fundamental ways to solve the problems of legal issues related with the cadaver. Therefore, this article refers to doctrines and jurisprudences of civil law countries, such as Germany, Japan, Taiwan China and considering current situation of China, summing up a set of solutions to solve these problems.The first Chapter of this article discusses the legal property of cadaver. First, it analyses the definition of cadaver in semantics, combining with the banditry and the body insulting sin in China's "Criminal Law" and the definition of cadaver defined by jurists to scope the range of cadaver in the study, so that the object and the scope of the study of this article are the entire cadaver or cadaver residues, including the remains and ashes. Then the article introduces three main theories of legal attribution of cadaver in civil law countries, such as Germany, Japan and Taiwan of China: remnants of personality theory, property theory, compromise theory, and demonstrates the rationality of property theory, as tone for the discussion in subsequent chapters.The Chapter two of this article discusses the ownership of the cadaver. This section proposes two questions: first, who is the subject of right of cadaver, second, what is the source of the subjects'right? The answers to these two issues can not be directly found in China's current laws. This section discusses the subject of rights that the cadaver corresponds to, compared with the theory of State or social ownership theory and Heir ownership theory,taking the latter as the main point of this article while combining with our traditional culture that the owner of the cadaver is the deceased's heir. Then the article refers to foreign jurisprudences, doctrines, and integrates with China's traditional culture to explain current laws, proving that the subject of right of cadaver should be the deceased's heir, and the right is based on derivative acquisition under normal circumstances. In consideration of current 'inheritance', it concludes to the heirs of the cadaver and the scope of heirs and the order of succession among the heirs. Second, the article discusses the changes of ownerships of cadavers in two types of special situation (namely, the cadaver of the fetus and the cadaver in ancient tombs).The Chapter three probes into the rules of disposal of the cadaver, that the rules of exertion of ownership of the cadaver. First, the article makes it clear that the particularity of ownership of cadaver is that it is a kind of non-full right, also a right attached with duty, so the exertion rules should be distinguished from the exertion of ownership of common things. This difference requires the owner must fulfill the obligations attached to rights and fully respect the customs, social traditions and moral habits of action on the cadaver when he exerts rights. Second, it discusses the special features of rules about exertion of ownership of cadaver from the four empowerment, possession, use, income and disposal, as it distinguishes two cases that when natural person acting as heir and state acting as heir.This article uses Semantic analysis and Comparative analysis. The use of Semantic analysis reflects in the anatomy of concept of cadaver in Chapter one and literal interpretation of law in Chapter three. Comparative analysis is the major research method of this article, researching problems by Comparative method helps to screen all kinds of theories and select the most suitable section to solve problems from all the theories. Chapter One The legal property of cadaver and Chapter Two The Owner of cadaver set out and compare different theories connecting to China's moral, culture to make the conclusion more scientific and meet China's actual needs.The innovation of this article concentrated on the third Chapter, the author combines the conclusion of the first Chapter and the second Chapter, China's current laws, refers to China's tradition and moral customs, making explanations to specific law applications. The article combines some sociological views and law and applies this method into legal research, regardless of the outcome good or bad, wrong, it is an attempt to localize the rule of law. The author hopes to provide new ideas to legal research that is combining the theory with China's reality, thus helps to solve practical issues.