Criminal Law Regulation In Human Organ Transplant Violation

This paper is on Criminal law regulation in human organ transplant violation. As a kindof advanced medical means, organ transplantation is being widely used in the world scope.However, this technology has two sides, it extends people’s life and benefit mankind, but alsoarouses various kinds of social problems. In these social problems, buying and selling humanorgans, smuggling and illegal gather human organs, taking illegal surgery of human organtransplantation are most serious. These behaviors directly relate to the two basic human rights:the right to live and the right to be health. These behaviors will not only make serious damageto people’s right, but also impact the social ethical order and disturb the medical healthactivities of our country. Therefore, they have a lot of serious social harmfulness.In front of forbidding the illegal behaviors of human organ transplantation, mostcountries and regions have special legislation, some even set up related charges in criminallaw specifically for the human organ transplant crime. Although China is an organ transplantpowers in the world, but our legislation progress of organ transplantation can not keep up withthe pace of the medical technology development. Especially in organ transplantation forviolations of criminal law regulation, China is in the backward relatively. As society’s lastguard of defense, only the criminal law play its irreplaceable function in science of life, canprovide strong guarantee for the activity and development of organ transplant medicaltreatment. Based on this, the paper aims at the criminal law regulation of human organtransplant illegal behaviors, though comparison research and empirical research method,analysis the main form of human organ transplant illegal behaviors. They are illegal gatheringhuman organs, buying and selling human organs, smuggling human organs and take humanorgan transplant operation illegally. And this paper also summarizes the existed charges andattempts to explore the criminal legislation on qualitative of some related crimes, in order tohelp the judicial practice.The article is divided into four parts.In the first part, two aspects of human organs illegal behaviors are summarized: theconcept and classification. First of all, the author make clear of three concepts, they arehuman organs, human organ transplant and human organ transplant illegal behaviors. Anddecide to use one provision of “the human organ transplant regulations” in our country, whichis about the definition of human organ transplant, as the starting point to the study the human organ transplant illegal behaviors, then what is human organ transplant illegal behavior isdefined. Second, the author divided the human organ transplant illegal behavior into fourtypes, they are the behavior of illegally gathering human organs, the behavior of buying andselling human organs, the behavior of smuggling human organs and the behavior of takinghuman organ transplant operation illegally.In the second part, the author analysis the human organ transplant illegal behavior,combining the “amendments to the criminal law of the People’s Republic of China (eight)”and other provisions of the criminal law. From legislation to judicial practice, the authoranalysis the criminal law of the charges that organ transplant illegal behaviors may be relatedto, specific include: intentionally assault, intentional homicide, the crime of theft or insultbodies, the crime of illegal business, the crime of disrupting the frontier quarantine, the crimeof smuggling ordinary goods, the crime of medical accident and illegal medical practicing.Part three is most important. Though thinking about the designation of crime,punishment assignment and legislation system and combining with the relevant provisions ofthe foreign countries, the author explores the deficiency of criminal law in human organtransplant illegal behavior in our country. The shortage in designation of crime is mainlyembodied in these main manifestations of human organ transplant illegal behaviors can not becovered by sins; For the behaviors of trading and smuggling human organ, there exists somevacuum in criminal law; The scope of special group in existing charges is too narrow, and sodoes the scope of subject in illegal human organ transplant operation crime. In the punishmentallocation, punishment in fine can’t play its role effectively. In the legislation system, it’s notreasonable in “amendments to the criminal law of the People’s Republic of China (eight)” thattakes people’s organ treatment as one tapy of intentionally assault.In part four, in order to safeguard people’s health and the development of organtransplant business, the author put forward some proposals for present criminal law regulationon human organ transplant illegal behavior from legislation to judicial perfect. The authoradvocates: building a sin about trading and smuggling human organs, taking the mentalpatient into the special protection range of organ transplant criminal legislation, taking theunits into the scope of medical accident crime and the crime of illegal medical practice, andperfect the punishment assignment. In the judicial practice, should pay attention to the sin andinnocence, and the distinction between different sins. But there is something more important:prohibiting to use the regulation on illegally business in the deal with buying and selling human organs.Though the research, the author hopes this paper can arouse more attentions on theillegal activities of human organ transplantation, especially on the crimes of human organtransplantation. To protect people, maintain social order and promote the developmentmedical treatment, the country should perfect relevant legislation early.