The Research About Conviction And Sentencing Of The Medical Subject In The Crime Of Organizing To Sell Human Organ

With the continuous development and maturity of medical technology,human organ transplantation has become a new effective means to treat many serious diseases.China has a large population and a large number of patients in need of organ transplantation,but the number of voluntary organ donations is relatively small.The long-term shortage of organ supply induces criminals to engage in illegal trading of human organs.In order to regulate such criminals from the perspective of criminal law,the crime of selling human organs arises at the right moment.Under the temptation of huge interests,many medical institutions and medical personnel also take the risk to participate in the trading of organs.However,from the current situation of criminal law regulation,this crime only stipulates that the person who organizes others to sell human organs will be sentenced to the corresponding punishment,and there is no special provision for medical institutions and medical staff to participate in the behavior of organizing to sell human organs.Specifically,there is no categorization of the medical-involved subjects as special subjects,lack of regulations on crimes committed by medical institutions and other units,and lack of severe punishment and sentencing circumstances for medical-involved subjects.In judicial practice,the sentencing of medical subjects is generally low,and the range of sentencing depends on the discretion of judges.Therefore,starting from the principle of matching crime with crime and punishment,we should include the unit as the main body of the crime,stipulate that the medical subject should be severely punished,improve the property penalty and qualification penalty,and at the same time,strengthen the professionalism of the court,limit the discretion of the judge.Perfecting the penal system will better regulate and prevent the crime of selling human organs by the medical subject.This paper is divided into four parts.The first part: analyzes the situation of the medical subjects involved in the crime of tissue selling human organs from the perspective of empirical cases,including the specific data of the sentencing of the medical subjects involved in judicial practice and the proportion of the number of the medical subjects with organ transplant qualifications.By comparing the difference of sentencing between the medical-involved subject and the general subject,this paper analyzes the reasons for the heavier sentencing of the medical-involved subject in two specific cases,and explores the factors affecting conviction and sentencing,such as the division of labor of the medical-involved subject in the joint crime and the influence of qualification holding on sentencing.The second part: describes the present situation of the protection of legal interests of the crime of organizing to sell human organs.The three major legal interests that the crime should protect are citizens’ physical rights and health rights,social stability order and medical supervision order.The behavior of the medical subject involved in the crime seriously infringes on the above three legal interests,but the legal provisions do not have special regulations on the medical subject involved,resulting in insufficient protection of the legal interests of the infringement of the medical subject involved in the current law.The third part: sorting out the subject types of the crime of tissue selling human organs,namely intermediary organization,the subject involved in the doctor,organ recipient and organ provider.This paper analyzes the particularity of the medical subject in the crime of selling human organs,that is,the undertaker of criminal technology,the direct violator of donor health and the violator of professional ethics.It reveals the dilemma of regulating the medical-related subjects,including the failure to impose heavier punishment on the medical-related special subjects,the failure to include medical institutions and other units into the criminal subjects,the imperfection of property penalty and the lack of qualification penalty.The fourth part: based on the above contents and theoretical analysis,the author puts forward some suggestions on how to perfect the regulation of the medical subjects involved in the crime of tissue selling human organs.In legislation,it is necessary to increase the circumstances of heavier punishment for the medical subject,increase the unit as the crime subject,perfect the property penalty and set up the qualification penalty.In judicature,we should correctly identify the name of the crime committed by the medical subject,strengthen the professionalism of the judicial organ and limit the discretion of the judge.