Study On The Crime Of Illegal Implantation Of Gene-Edited,Cloned Embryos

After the He Jiankui case,China established the crime of illegal implantation of gene editing and embryo cloning through the Criminal Law Amendment(X)in 2020,which to a certain extent bridged the legislative gap in gene technology and reflected the principle of partially open regulation in China,balancing the needs of scientific research and criminal law regulation.However,this crime has been established for a relatively short period of time,and some of the judicial application issues have not yet been clarified.In this paper,we analyze the legal interests protected by this offence,its constituent elements,the scope of "aggravating circumstances",and the identification and competition with other offences,in order to provide some reference for judicial practice.The first chapter presents an analysis of the risks of genetic technology and the current regulatory framework in China.This chapter firstly introduces the risks and hazards of unlawful implementation of genetic technology,the ethical and moral risks of "genetic preference" and "genetic discrimination",and the legal risks of endangering the orderly management of medical treatment,and explains the need and urgency of creating this offence.Secondly,this chapter introduces the two existing regulatory models-"strict restriction" and "partial liberalization"-and explains the regulatory models and characteristics of the offence in China,to facilitate a holistic understanding of the offence.This will facilitate a holistic understanding of the offence.The second chapter is the proof of the legal benefit of this crime.Regarding the legal benefits of this crime,there are three main theories: the "medical management order theory",the "human dignity theory" and the "new super-personal legal benefits theory".In this paper,we believe that the "human dignity theory" and the "new supra-personal legal interest theory" are uncertain,difficult to understand and apply in judicial application,and unable to respond to the purpose and needs of the establishment of this crime.On the other hand,the "medical management order theory",on the one hand,can take the crime of illegal practice of medicine as the basis of understanding,facilitate the understanding and application in practice,and avoid the crime becoming a formal crime,on the other hand,it can also reduce the differences in regional application and avoid different judgments in the same case,and is more reasonable as the protection of legal interests of this crime.Chapter 3 explains the constituent elements of the crime.This chapter focuses on the meaning and scope of "embryo","implant" and "implantation" in this offence,and explains the constituent elements of this offence in detail.The scope of "aggravating circumstances" in this crime is also analyzed to clarify the scope of regulation of this crime.In the first part,this paper analyses the act of "implantation" in this crime in the light of the Rules for the Classification of Medical Devices and the State Food and Drug Administration’s Notice on Corneal Contact Lenses Not Being Implanted Medical Devices,which require the act to penetrate deeply into the human body and expect close integration with it.In the second part,based on the special nature of embryos,this article clarifies that the scope of the protection of this crime does not include embryos that have been genetically edited or cloned.Moreover,the scope of implants in this offence is not limited to female and human bodies,but it is appropriate to expand the scope appropriately to include male and animal bodies that may appear in the future,so as to facilitate this offence to cope with the future needs of judicial application.To a certain extent,the scope of the offence is limited to those who are involved.In the third part,due to the specificity of the act of gene editing and cloning in this offence and the potential for harmful results,the "aggravating circumstances" are analyzed according to the course of the act,in the light of the purpose of the establishment of this offence,in three stages: beforehand,during and afterwards.Chapter 4 deals with the definition of the offence in relation to other offences.This chapter analyses the differences between the legal interests protected by this offence and other offences,the scope of the subject matter and the mode of conduct,and defines the distinction and competition between this offence and the offences of unlawful medical practice,medical malpractice,and other offences of injury.