Criminal Organ Transplant Research

Transplantation of human organ has made a great progress and deepened its development in China, which made it possible for those whose organ fails revive their health and even rewin their new life. Nevertheless, transplantation of human organ evolved into a kind of newly rising crime with the development of its relevant science and technology, can seriously harm our citizens’ health and life, and which can result in various crimes because of its enormous pecuniary stimulation such as illegal sale of human organ, stealing human organs from living body or dead body, unlawful experimenting through human organs etc, which violated the normal medical order medical administration and relevant laws concerning organ transplantation. The Criminal Law of the PRC had no punishment for illegal transplantation of human organ before its Eighth Amendment was promulgated.Actually, it is the Regulation for Organ Transplantation(2007) that has been cited for punishing illegal transplantation in judicial practice.However, the Regulation for Organ Transplantation(2007)as an administrative act can not considered as a key criminal punishment because of its ambiguous statement and thus it can not effectively protect or punish relevant crimes especially illegal transplantation of human organ.In comparison, legislative regulations on curbing illegal organ transplantation in foreign countries are more than those in China, especially criminal regulations, the latter of which are nearly none.At the same time, the theoretical research field of criminal law pay little attention to the problem of illegal organ transplantation.It is the Eighth Amendment of the Criminal Law of the PRC that for the first time regulates the rules for punishing illegal transplantation of human organs, which shows its realistic significance and plays a key role in curbing and punishing illegal transplantation of human organs.According to the above-mentioned facts, the thesis tries to take some of the essential problems about illegal transplantation of human organs as its argumentation foundation while dealing with some important problems such as regulations about illegal transplantation of human organs, style of criminal activities concerning illegal transplantation of human organs(i.e.illegal sale and buying of human organs) the Eighth Amendment of the Criminal Law of the PRC.Besides, the thesis touches down upon some original names of the crimes(ie.the crime of willful and malicious injury), and analyzes some new types of crimes.Finally, the author of the thesis contributes her own propositions for legislating construction about transplantation of human organ.The thesis is made up of five parts:Part one introduces some basic legislative theories about the criminal law concerning transplantation of human organ, and argues about the concept and nature of transplantation of human organ, and some difficulties in transplantation of human organ we have to face so that we can have a rough idea about the whole article.The second part of the thesis is the study of the crime of transplantation of human organ from perspective of comparative law.We firstly cope with some relevant laws concerning transplantation of human organ of both foreign countries and China(including mainland, Hong Kong, Macao and Taiwan).We make a comparison between the Continental Law System and Anglo-American Law System, both of which adopted two different legal means to regulate to regulate transplantation of human organ. While we learn from the two legal systems, we talk about the some relevant laws and point out some of the defects about the laws of transplantation of human organ.The third part of the thesis analyzes the legalisation for transplantation of human organ, focusing its lawfulness of the removal of the human organ, including the laws regulating the donor of the organ and the receptor of the organ while analyzing and demonstrating the victim promise and its effectiveness.The fourth part tries to define the nature of the transplantation of human organ from the view point of criminal law and analyzes some of the relevant regulations contained in the criminal law, especially some essential crimes such as intentional injury, voluntary manslaughter, theft, insulting corpse crime involving the transplantation of human organ.The last part of the dissertation is about the suggestions and speculation in relation with the legislation to curbing the criminal transplantation of human organ in China.