Criminal Law Analysis On The Crime Of Organizing The Sale Of Human Organs

In 2011,the Criminal Law Amendment VIII added the crime of organizing the sale of human organs,which is the first time that the criminal law of our country regulates the crime of organ trading.Before the introduction of this crime,China's organ trading crimes were mostly classified as illegal business crimes in judicial practice.This crime is difficult to reflect the characteristics of organ trading crimes and confuses the scope of legal interests protected by the two.The addition of this crime to the criminal law has better resolved the controversy of this behavior in judicial practice,the controversy over the crime itself has emerged endlessly.For example,how should the scope of human organs be defined? What is the legal interest protected by this crime? How to understand the implementation of this crime? This article will analyze the above questions on the crime of organizing the sale of human organs one by one.In addition to the introduction,the body of this article is divided into three parts.The first part of the article is a summary of the crime of organizing the sale of human organs.The article begins with organ transplantation technology,introduces the concept of organ transplantation,and then introduces the first section about the crime of organizing the sale of human organs.The introduction introduces the current status of organ transplants worldwide and the countries of the world according to theirown country.Actually,there are three regulatory modes adopted for organ transactions:the completely prohibited criminal law system model,the limited prohibition criminal law system model,and the absent penalty law system model.Among them,China is currently adopting a criminal law system with limited prohibition.The second section is an analysis of the current situation of the crime of organizing the sale of human organs in our country.The first small part is the legislative process of organ trade in China.In general,China's organ trade legislation began in Shanghai in 2001,the Shanghai Municipality's Regulations on Donation of Organs,but China's criminal law regulates organ trading behavior.But China's real regulation of organ trading by criminal law is a crime added to the Criminal Law Amendment VIII in 2011 to organize the sale of human organs,which is the first criminal legislation in China to regulate the act of organ trading.In the second part of this section,the case of organizing the crime of selling human organs in judicial practice,the author summed up the controversial focus of this crime in judicial practice according to the case retrieved online by the referee documents:(1)Is the crime committed as a crime or as a result? The perpetrator carried out organizational behavior,but was arrested in the absence of successful organ transplantation,whether it was attempted or not;(2)the organization of the crime should be understood in the narrow or broad sense.The broad and narrow sense mentioned here is the distinction in the practical circles.The second part of the paper will also refer to the broad and narrow definition of the act of the organization made by the theoretical circles,The criterion of distinction in practice circle is the scope of specific behavior,while the criterion of distinction between broad and narrow sense in theory is whether the means of conduct include the means of violating the will of the seller of organs,such as violence and coercion;(3)How to determine the serious circumstances of the crime in judicial practice.The second part of the article is about the criminal law interpretation of the crime of organizing the sale of human organs.The first section analyzes the constituent elements of the crime of organizing the sale of human organs.Legal interests have a guiding role in the entire crime,and the academic community has different opinions on the legal benefits protected by this crime.This article believes that the legal benefitprotected by this crime is the non-tradability of human organs,and the similar legal benefit is the state organ transplant management order.In organ transplant crimes,human organs should be understood in a broad sense,including not only human transplantable organs,but also tissues that can be transplanted.Specifically,it should be limited in this crime,that is,the organs and tissues that the seller has the ability to promise.From the perspective of the interpretation of the meaning of the text and the interpretation of the system,the practice of this crime is the organizational behavior,that is,the behavior of organizing others to sell human organs in a peaceful way,and it is necessary to exclude violence and forced behavior.The subjective aspect of this crime is deliberate,that is,the actor wishes or allows the behavior of the organization to take place,knowing that it will lead to the non-tradability of the human organ.The second section of this chapter discusses the pattern of the crime of organizing the sale of human organs.It is divided into two parts: One is the standard of accomplished crime,and the other is the accomplice problem of this crime.This paper believes that this crime is a behavioral crime,and the behavior is the organizational behavior of organ trading.When the actor begins to carry out organizational behavior,it completed this crime.There are two parts in the accomplice problem.First,when organizers of organ trading sell their own body organs,whether they together with other organizers constitute a joint crime of organizing the sale of human organs,this article holds that this situation still constitutes a joint crime.Second,in general,whether the organizer and the organized person constitute a joint crime.The author believes that the two do not constitute a joint crime of organizing the sale of human organs.First of all,the main activity of organ sellers in the crime of organ trading is to negotiate the price with the organ buyer.Even many organ sellers will not participate in this part,but passively undergo transplant surgery,if only passive action of undergoing surgery is explained by the fact that organizational behavior can lead to a wide range of criminal attacks on this crime.Some people believe that passive surgery is also a kind of help for organ transactions.It can be understood as a helper of this crime.I think,at the beginning of legislation in China,the attitude toward organ trading is a limited regulation.If the organ seller is regarded as an accomplice in theforegoing way,it is undoubtedly treating the simple organ selling behavior as a crime.This is in contradiction with the legislative intention.The main content of the third section is the issue of judicial determination of this crime.The boundary between this crime and the crime of intentional assault and intentional homicide is whether the seller has made a real and effective commitment to sell the organ,and whether the organizer's means is violent;this article considers that the third paragraph of the crime of stealing ? insulting and damaging corpses is not a legal fiction,but the attention of the provisions.The third part of the thesis is the author's proposed suggestions for crime of organizing the sale of human organs according to analysis of the legislative situation and the judicial situation in the first two parts of the article,which are divided into two aspects: legislative advice and judicial advice.In legislation,China should correctly define the legal interests of this crime,amend the chapter position of this crime in the existing criminal law;expand the criminal subject of this crime,and put the unit into the subject of this crime to regulate;improve the legal punishment of this crime,in the form of the multiple system,a more quantitative provision is made for the fine of the crime,to avoid excessive discretion of the judge.Combining the case situation in judicial practice and the discussion in the theoretical circle,this paper believes that the judicial level should clarify the serious circumstances of this crime;correctly determine the scope of the criminal behavior from the two aspects of specific behaviors and means;When conviction,pay attention to distinguish the relationship between this crime and the second and third clauses,and clarify the relationship between this crime and other crimes.