Research About The Crime Of Organizing Other Persons To Sell Organs

In recent years, the number of the organ transplantation scale in our nation ranks No.2in the world, however, as the statistic data provided by department of health shows, among1.5million patients waiting for organs transplantation, only10thousand ones can get organs transplantation. The imbalance between organs supply and demand generates human body organs business to a large extent. On February25,2011, PRC Criminal Law Amendment (8) first formulate organizing other persons to sell organs as crime:"The persons who organize other persons to sell organs will be sentenced to set term of imprisonment lower than5years and asked to pay penalty; Cases of gross violation will be sentenced to set term of imprisonment more than5years, penalty will be asked and property will be confiscated." On April21,2011, the1520th meeting of Supreme People’s Court of PRC judicial committee and April13,2011, the60th meeting of Supreme People’s Procuratorate11th procuratorial committee pass " carry on the supplementary provisions of’Criminal Law of the PRC defining crimes (5)", the first of the234th clause defines crime as "the crime of organizing other persons to sell organs". The paper take this as the starting point, the analysis the current situation of the crime of organizing other persons to sell organs in our nation, the characteristics of the crime of organizing other persons to sell organs and the reason why it is generated, the related legislative evolution of human organs crime in our nation as the entry points. Through deeply analyzing the formulation of crime of organizing other persons to sell organs, the paper tries to conduct judiciary verdict towards the relative problems with the combination with the judicial practice of our nation, hoping to serve as a modest spur to induce someone to come forward with his valuable contributions for the continuous research about the crime. The paper is mainly consisted of four parts: The first part is the introduction, mainly introduces the object and significance of the research in the paper.The second part is the background analysis of the crime of organizing other persons to sell organs. The main content of the part are the interpretation of the current situation of the crime of organizing other persons to sell organs in our nation, the characteristics of the criminal behavior of organizing other persons to sell organs in our nation, the reason why the crime of organizing other persons to sell organs is generated in our nation and the related legislative evolution and evaluation of human organs crime in our nation.The third part is the reasonable formulation analysis of the crime of organizing other persons to sell organs. This part is the emphasis of the paper. When choosing the theory system of crime formulation, the author takes the "traditional four elements" which takes the dominant position in the legal circle of our nation as the fundamental and applies the order that criminal object elements, objective aspect of crime, criminal subjective elements and subjective aspect of crime as the crime formulation elements order. Firstly, when dealing with the criminal object elements of the crime of organizing other persons to sell organs, the author demonstrates six viewpoints of the present educational circle and their respective logical justification and regards it as an offence to public health security, medical order, organs transplantation management system and the public’s health right, besides that, the author explain his relative theory support. Secondly, when dealing with the objective aspect of the crime of organizing other persons to sell organs, starting with the organizational behavior of the crime, the other persons of the crime and the selling behavior of the crime, the author proposes that the "organizational behavior" should be that the organizer takes one or more, or multiple means to lead, plan and control others to conduct the behavior of selling organs on the basis of the summary of various viewpoints of the educational circle and the related logical justification:(1)call up and collect sellers or assist sellers to participate in the illegal activities of selling organs;(2) taking the means of providing payment to induce employees actively assist and join in the illegal activities of selling organs;(3) lead and guide several persons to participate or arrange the behavior of selling organs, or use material benefit or non-material benefit as bait, induce others to participate in the illegal activities of selling organs;(4) providing place or convenient conditions to hold and accept others to selling organs;(5) organizing others to sell organs in obvious method or invisible method. There is no strict limitation for the numbers of organizers or the persons organized, the exact judgment should be conducted in accordance with the harmful effect of their "organizational" behavior on the society. Meanwhile,"others" should include the condemned and close relatives in specific situation, together with the medical organization legally have donated organs and relative personnel. Besides that,"sell" behavior should include the agreement of the aggrieved person himself or herself. Thirdly, when dealing with the criminal subject elements, the author demonstrates the relative dispute and about subject elements in educational circle and their respective logical justification and proposes that institutions should not be included in the criminal subject of the crime of organizing others to sell organs under the current situation. Fourthly, when dealing with the subjective aspect of crime, in the author’s opinion, the crime should be made by purpose, misstep should not be included. This crime is not absichtsdelikte, whether the organizer does so for profit has no influence on the charge of the crime.The fourth part is the judiciary verdict of the crime of organizing others to selling organs. This part is consisted of two contents:one is the judgment of organs of the crime. The author has concluded the three attitudes towards "organs" of the crime:"conservative","reform","compromise" and their responding theory support, in addition, the author has proposed his own point of view about the definition of organs of the crime. The other is the judgment of the crime of organizing others to selling organs and other crimes. The author mainly explains from two aspects:the crime of organizing others to sell organs and the crime of intentional homicide, the crime of organizing others to sell organs and the crime of illegal business operation.