Criminal Law Evaluation Of Physicians' Illegal Organ Harvesting

There are many types of illegal organs removal by doctors.However,China's Criminal Law only makes it a crime to remove organs of people without their consent,or people under the age of 18,or force or deceive others to donate organs.For the other illegal organs removal activities,such as doctors knowing that the organs are from illegal sources but still organs harvesting,or doctors did not fulfill the obligation of organs donor qualification examination and organs harvesting,the above circumstances of the conviction is not made clear.This paper analyzes the illegal removal of organs by doctors.And according to the different subjective mentality and objective behavior of doctors,this behavior can be divided into three types.And explain the reasons why the act should be applied to the criminal law.It also elaborates whether different types of illegal organs removal by doctors constitute crimes and applicable charges in the current Criminal Law of China.It is hoped that this will provide help for the criminal conviction of this act in judicial practice and also provide ideas for the perfection of organs transplantation crime in China's Criminal Law.The paper is mainly divided into four parts:The first part introduces the general situation of the illegal removal of organs by doctors.And explains the legal basis for doctors to extract human organs and the necessary conditions,and the connotation,manifestation and current situation of doctors' illegal organs extraction.The second part elaborates the necessity of the criminal law to regulate the illegal removal of organs by doctors.It is mainly reflected in three aspects.First of all,it damages the citizens' health rights,destroys the ethical order and management order of normal organs transplantation,violates the values of fairness and justice,and violates the dignity of human beings.It has serious social harmfulness.Secondly,the application of criminal law to regulate the act helps to combat the crime of organizing the sale of human organs.Finally,the existing administrative laws and regulations are difficult to effectively suppress the act.The third part introduces the legislation status of illegal organs removal by doctors in some foreign countries or regions,and summarizes the experience of overseas legislation.Overseas attitudes towards severe crackdown on illegal organs removal by doctors and their accountability models are worthy of reference in China.The fourth part discusses the offence of illegal organs removal by doctors in the existing criminal law system.Doctors who knowingly remove organs of a minor,a person without full civil capacity or a person involved in organs trading may be guilty of intentional injury crime.It may constitute a crime of medical malpractice if a doctor takes organs of a minor,a person without full civil capacity or a person involved in the organs trade because the doctor fails to perform the duty of organs provided qualification examination.Doctors who have performed the duty of qualification examination and who have not found the origin of organs illegally but have extracted organs can apply the principle of trust and prevent the crime from being constituted.