Criminal Law Countermeasures Of Human Organ Transplantation In China

Scientific and technological progress has played a great role in promoting the development of various fields. In the field of biological medicine, the technology of human organ transplantation has overturned the traditional treatment, and becomes one of the emerging medical technology. On the one hand, human organ transplantation restores the health of organ failure.But on the other hand, it has also become a tool of illegal profits,causing a variety of forms of crimes. The promulgating of The Criminal Law Amendment eighth fills the blank of the criminal law in response to the human organ transplantation.But due to our country criminal law on regulating the behavior of human organ transplantation starts late, the application of charges still exists some controversies and limitations.This article attempts put forward my views on the relevant issues from the transplantation of human organ of in the current criminal law.At first,this paper introduces the basic problems of human organ transplantation,and defines the concept of human organ and the behavior of human organ transplantation. In this paper, the concept of human organs is used in a narrow sense, that does not include human tissues and human cells. The patterns of human organ transplantation is defined.And the patterns are divided into legal human organ transplantation and illegal human organ transplantation.It is analyzed the criminal countermeasures for transplanting of human organ in our country from three perspectives. The first is criminal regulation for organizing to sell human organ. It has analyzed the complexity for infringement of legal interest and the diversity of behavioral patterns for the crime of organizing for sales of human organs. It is agreed that this crime is behavioral offense and whether actually to remove organ or not does not influence the accomplished offense of this crime. The second is criminal regulation for illegal removal. It is considered that Sections II and III of Article 37 in Amendment to Criminal Law are attention regulation.It analyzes the applicable situations for the crime of intentional injury or the crime of intentional homicide and the crime of stealing or insulting corpse organs. The third is to analyze the justifiable causes of criminal regulation for transplanting of human organs from three aspects. They include consent of the victim,act of rescue and legitimate business.Starting from current legislation status, the limitations of criminal regulation for the transplantation of human organs has been analyzed. On the one hand, it is pointed that the punishment scope is narrow and the existing problems are including that the existing charge is single, the subject of unit crime is absent and special protection is lacked for mental patients. On the other hand, it is pointed that defect is existing for the allocation of criminal penalty. The punishment situations according to gravity of the circumstances are ambiguous and the allocation of property punishment is imperfect.The final is describing criminal improvement for the transplantation of human organ in our country. It is proposed to expand the punishment crime for illegal transplanting of human organ, including expanding the crime subject into the unit, enhancing special protection for metal patients and analyzing the necessity and legislation concept to add the crime of trafficking human organs. The allocation of criminal punishment for the crime of transplanting of human organ will be more perfect by detailing specific standards of gravity of the circumstances and expanding application of property-related punishment.