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Criminal Law from the Perspective of Organ Transplantation

Abstract: The life-saving organ transplants to human medicine has brought the gospel, but it also led to a large number of criminal legal issues. National legal circles for a heated debate these issues, the relevant legislation also includes buying and selling human organs, such as strong pick another organ transplant regulation of crime carried out,[link widoczny dla zalogowanych], which to some extent, a national bioethics order to maintain stability. In recent years, organ transplantation technology has gained rapid development, but the relevant legislation has not been involved in organ transplantation issues of criminal responsibility to make substantive provisions, this need in our country, special provisions of their criminal liability.
Keywords: crime; organ transplantation; criminal
Abstract: While organ transplantation conduces to recovery of the injured or sick man's health, it also triggers off some issues in criminal law, on which heated debates are provoked in law circles all over the world. Consequently, statutes prohibiting selling human organs or compulsorily moving other's organs are enacted, which, to some extent, is helpful to the maintenance of worldwide order of life ethics. In recent China, organ transplantation engineering has acquired substantial accomplishment. However, no specific provision pertaining to the criminal liability arising out of organ transplantation has ever been incorporated. Therefore, it is necessary for us to supplement provisions specifying illegal organ transplantation and relevant sanctions to the Criminal Act.
Key Words: crime; organ transplantation; criminal liability
Organ transplantation is the 20th century, the field of biomedical engineering landmark technology, humans have changed the traditional way of leaving the drug treatment of injured organ recovery a new medical model, it has brought to the medical field revolutionary change. the most complex aspects of the criminal law, too, are one. An organ transplant and the challenges of the criminal law organ transplant (organ transplantation) is the removal of the donor organs with specific functions (including some of the organizations) of all or part of its acceptance in the human body to replace the implanted lesions organ (or tissue) of the process. In organ transplantation, providing the party organ known as the donor (or donors), but the party organ is called receptor (or recipients). In medicine, according to the different sources of donor organs, organ transplantation can be divided into four categories: First, xenotransplantation, also known as cross-species transplantation, is to a biological organ transplant to another creature, such as the monkey heart transplantation to the dog's body, the baboon's kidney transplant in the body, etc.; the second is the same kind of autologous transplantation, referred to as autologous transplantation, is about a certain part of the same biological individual organ transplant to the other parts of the individual, If the head of the human skin grafts to the chest; Third, allograft transplantation, about an individual with a biological organ transplant to the biological body of another individual, such as the incident to heart transplantation to the John Doe who ; Fourth, man-made mechanical organ transplantation, that is, the mechanical organs with artificial organs as a donor, will be transplanted into the recipient body. At present, Artificial mechanical organ transplants are more concerned because the property rights of donors and less involved in their personal rights, and thus rarely have criminal problems, so we discuss here mainly refers to the organ allograft transplantation . (A) the history and status of organ transplantation human organ transplant has been a long dream. This, both in the myths and legends of the West, or in the fairy tale in ancient China, are not difficult to get confirmed. As early as 600 BC, the ancient Indian surgeons had to use my arm removed from the patient's skin to restructure the legend of the nose, this is actually a skin grafting autologous tissue transplantation, it is foreign tissue and subsequent allogeneic organ transplantation to become today a pioneer in transplant surgery. In China, about 430 BC, there is also a highly skilled doctor Bian Que exchange for the two to treat the legend of the heart. The early 1st century AD, the West also have saints Cosmos and Domian spread the legs of a dead Ethiopian transplanted into the body of a white man saying. But the legend has not been scientific proof that they more a reflection on the organ transplant of human aspiration. Modern transplantation experiments in the late 18th century, there is the father of experimental surgery, Dr Hunter said the man who succeeded in replacing the first molar [3]. But the transplant was truly serious study is a practical thing after the 20th century. In 1902, French scientist Karel (A · Carrl) and Gu Sili (C · Guthrie) invented the vascular suture techniques, laid the basis for the clinical application of organ transplantation. In 1936, the Soviet scientists Varro Illinois (Voronoy) as a uremic patients had a first renal allograft, but knew nothing about the mechanism of immune rejection without taking any measures to immune suppression, making the patient during surgery survived for only 48 hours after the death. After a number of scientists have carried out have included kidney transplantation, skin grafts, etc., the multiple organ transplants, but all looks very clear because in today's issue of immune rejection failed to be successful, entered a dark period of slow development 1940's, 皮特梅达尔 (Peter Medawar) in their colleagues Frank Burnett (Sir Frank Burnet) help explain the immune system and the rejection of foreign tissue found in the principle of transplantation immunology is laid the foundation, but also allow scientists to find a previous organ transplant often the root cause of failure. On this basis, in 1954, the U.S. scientist Maurice (Murray) between a pair of twins, the successful implementation of the first case of human history, long-term survival of kidney transplant function, open the first of its kind in human organ transplantation. 1955, revised Mu (Hume) in renal transplant steroid hormones used to make the same kind of kidney transplantation has gained new progress. In 1959, the French scientist Maurice Hamm Burger (Hamburger) to give their kidney transplant patients with high-dose whole body irradiation to suppress allograft rejection methods to make unusual kidney transplant between identical twins surgery has been successful. After the 1960s, the medical profession has gradually carried out, including liver transplantation, lung transplantation, heart transplantation, intestinal transplantation, pancreas transplantation, including organ transplant all the same. In 1978, the advent of a new generation of immunosuppressant cyclosporine, the clinical effect of the same kind of rapid increase in organ transplantation. After the 1990s, a breakthrough occurred Transplantation, survival rate, the number of transplants, organ transplants carried out so substantial increase in the number of units, organ transplantation is increasingly becoming a routine surgery. Now, organ transplantation as a means of comprehensive health care in the country have been widely used. (B) of the organ transplantation on the challenges of modern criminal law organ transplantation has become more sophisticated technology and its wide application in clinical care for patients suffering from organic diseases and even prolong life brought back to health the Gospel. Organ transplantation has greatly improved the traditional drug treatment, greatly improving the ill and the survival and quality of individual lives, more and more people see the hope to regain health. It is understood that nearly 7 million people worldwide every year, organ transplantation, many people on the occasion of life in the dying to be reborn and thus reproduce the glory of life [5]. But no doubt, the technology also led to many ethical and legal problems, contemporary legal theory and legal practice and challenges, including the criminal law theory and practice of modern challenges. Many of the issues in organ transplantation are the traditional criminal law theory and system challenges. For example, in vivo organ transplantation, doctors extract the behavior of donor organs constitute assault? Victim's commitment to inform doctors of criminal responsibility as a reason for exemption? In cadaveric organ transplantation, the families of the deceased against the wishes of the deceased to sell their body organs, whether the conduct constitutes a crime? Doctors did not fulfill the obligation in the case of unauthorized use of other body organs for transplantation would constitute ... ... These are the organ transplant system to the modern criminal theory and the challenges. Organ transplant system to the modern criminal law theory and the challenge is clearly far more than these, because the source of donor organs is the various problems caused striking example. Organ transplantation in the application process encountered an insurmountable obstacle, namely, a serious lack of donor organs. Because people who voluntarily donate organs while relatively few people in need of organ transplants and extremely large, resulting in the number of donor organs can not meet the actual needs of the development of organ transplantation, many patients waiting for a suitable organ can only be a long painful process of die. In this context, medical practice is often a source of donor organs due to trigger some criminal cases, such as occurred in 1998 in Beijing, In Hebei The legality of criminal justice has become the basic idea of the context of the occurrence and treatment of these cases the results have on the criminal justice challenges. In addition, around the source of a serious shortage of donor organs problems often occur in practice buying and selling human organs, even though the international community in general to such acts as crimes called for the prosecution of criminal responsibility related to the perpetrator, but theorists in relation to criminal responsibility system should not intervene to adjust this behavior neither the controversy has never stopped before. Clearly, the legal interpretation of how the commercialization of human organs criminal behavior has become the modern criminal law theory and the system is facing major challenges. Second, domestic and international crime and criminal organ transplant organ transplant theory is a special medical practices, and traditional medical practice there is a clear distinction. Ethical traditional medical treatment based on patients, this does not involve the interests of the third person's life, and the emergence of organ transplantation from a fundamental change that. As cross-species organ transplantation and artificial organ transplantation technology machinery far can not meet the actual needs of the medical clinic, so in most cases, organ transplants need to sacrifice or damage the interests of an individual to save another individual life, which necessarily involves the interests of the damage to the third question. It is for this reason, organ transplant from the date of the birth of scholars from various countries will be suffering from the controversy, the debate on criminal responsibility are among them. Currently, the national crime and criminal responsibility for organ transplantation research focused primarily on the following issues: (a) the removal of donor organs, doctors justified based on the conditions and does not constitute a crime on a doctor Abstract behavior of the donor organ obtained justify the basis of foreign scholars are usually attributed to the donor's consent, but whether the individual donor's consent for organ harvesting as a doctor acts on the legitimate ground is in dispute. Legal ethics,[link widoczny dla zalogowanych], said that even if the victim of the attack upon the interests of the consent, but also consider the implementation of the consent under the act is not permitted for social ethics, agreed Justification is leaving the community very rare occasions (social rather resistance) [6]. Therefore, if the doctors agree that the removal of the donor organs for transplantation is not fully established on the existing ethical requirements of life, the mere consent of the donor does not in itself the removal of the donor organ as a doctor acts justified basis. For example, if the behavior of doctors harvesting organs is based on the consent of the donor based on an invalid (for example, donations may be damaged patients and their lives), then this behavior does not relieve the criminal. Legal interests are protected, said that if the consent of the victim against their own interests, the interests to be protected by criminal law does not exist, or is determined to achieve his own freedom, in this case, the victim consented to the act should be justified on the principle of behavior. against, but if the violation does not violate the meaning of the words of others, criminal law can extricate themselves from the task, there is no need to conduct the evaluation as a crime against. body agreed to the removal of their organs for transplant doctors occasions, there is no objective method of Infraction, since there was no benefit against, the act also a legitimate act. About doctors Erzhi donor organ harvesting damage to whether the conduct of its crime problem, more consistent view of foreign scholars that believe that a doctor without a license or other valid without consent from the donor body removal of organs constitutes a crime. On the contrary, subject to certain conditions, the removal of donor organs should be exempt from criminal behavior. Gerald Dworkin (Gerald Dworkin), published in 1970, consent; (2) The procedure must be therapeutic purposes and for the benefit of patients; (3) must have the legitimacy of the law [7]. In countries such as Germany and Japan, said through criminal law theory that the following conditions for the removal of living donor organ transplantation act does not constitute a crime: (1) must be sufficient to explain organ donor transplantation, organ harvesting may be its risk of health problems; (2) organ donor transplant must be based on the true will of the commitment in good faith agreed to donate organs; (3) donor organs for transplant must be considered their health status, not only in the removal of their organs The conditions can be dangerous to implement [8]. Conversely, if the use of deception, coercion to make a commitment to donor organs for transplant, or no removal of donor commitments of its organs, or organ transplant donor for a major life-threatening situation removal of their organs, it is possible constitute a crime. New York State in 1914, the District Court's Schloendorff v Society of New York Hospital case, Benjamin Nathan Cardozo the judge said: If a doctor without the consent of their patients for surgery,[link widoczny dla zalogowanych], constitutes assault, should be liable for damages. The premise, however, if the consent of the donor may lead to his death, the consent agreement is invalid, then the doctor may be due to removal of body organs for criminal liability, unless the consent is for the most donor best interests to be considered [10]. My opinion, the doctor informed consent for living organ harvesting organ transplantation can be justified by the important theoretical pillar. However, informed consent is not sufficient in itself to become a doctor living organ of the legality of the removal of the basis for standing in the stand of bioethics considerations, the consent of the donor can become a living organ harvesting depends on the agreed basis for the legitimacy of whether they have enough rationality, which acts as the legal and ethical requirements allow; behavior beneficial to society and himself; behavior of the rational implementation of follow certain rules [11]. Otherwise, even in the case of donor consent, the removal of organs are still bound to live with nature and even the criminal law. Therefore, the doctors live organ removal must meet the following conditions are to be exempted from criminal liability only: (1) the removal of organs for transplant purposes shall be; (2) organ harvesting has the medical suitability; (3) for those with autonomy in the ability to make free and donations will of the premise, the removal of donor organs be built on the basis of fully informed consent, punishment without violating bioethics. (B) legal attributes of the definition of human organs legal property of the definition of human organs, which organs the question whether the object is to study the Human Organ Transplant criminal law must be to address a fundamental problem, because the human body organs will directly determine the legal characterization of certain human organ transplantation, especially criminal liability. To steal human organs for transplantation, for example, if we define human organs as a property of matter with, the theft of organs would constitute a clear act of theft, but if we will be characterized as a kind of human organs personality of entities, the act of stealing human organs is clearly not constitute a theft. In the strong pick another organ, organs and other implanted against the case, apparently will face the same problem. On the nature of human organs, there are three different legal theory the doctrine: First, Wang Liming, presided over the contrary to public order and good morals is limited, can be used as objects Second, Shi Shangkuan Taiwan scholars to believe that the living body, not as a legal matter, because the law is the subject of human rights, if its components (ie, all or part of the body) as the subject of rights,[link widoczny dla zalogowanych], the violation of recognized personality fundamental concepts. But the personal part of a natural separation from the body after part of its longer physical, as external things, of course, things should be legal, for the rights derived from the subject. However, some of its original ownership, are separated before the respective person can be carried out in accordance with the meaning of human rights action [12]. Third, Because human organs as a natural part of personal, do not have property, that is the economic value can not be measured. Anchored, the right of human organs should be the subject of the body rather than the subject property. As a natural person legally entitled to one of the important moral rights, right to the basic meaning and the body is required to maintain the natural physical integrity, the integrity of any act of physical destruction of natural persons are considered to constitute an infringement of natural right to the body [13] . Fourth, Because from the legal perspective that the legal sense of the legal relationship is the subject matter dominated, in production and daily life need an objective entity [14]. It should be the premise of non-physical nature, has the physical attributes of all entities should not be the legal sense of the material. Human organs as part of the body, and personality of a natural (physical nature) of two properties: First, its naturalness, having organs of all animals including humans have the physiological characteristics of the inevitable and natural phenomena. The production of human organs from the point of view, it is the result of the laws of nature, not man created. In other words, human organs have not the people's will a natural property. Based on this natural attribute of human organs, without prejudice to the premise of life and health of natural persons, human organs and their physical separation is not only possible, but it is possible in medical technology. Secondly, the personality of human organs (human nature), the social relations of human organs as the body of the main components of natural persons, while the natural person has the personality attributes that embodies the attributes of personality existence of natural persons for the community and as a recognition of the main body of social relations. This society recognizes neither accompanied by destruction of natural death, nor the human organ from the body of natural persons is stripped out and die. In contrast, a natural person or body organs be donated after the death of the body, such recognition is still with the existence of the development of society as a whole. Human society has become traditional, parasitic in the human body and its organs on the life and health of the respect and protection as well as the remains of human fear and taboo is a proof in this regard. It is the personality of human organs (personal) property determines the natural person in the free time to dispose of their human organs is bound to be moral, ethical, and legal restrictions. View the above in all, I agree with last stand. On the nature of human organs and its legal attributes, I believe that with both human organs is a natural property and personal property with the objective entities, both non-legal sense of the people, but also non-legal sense, but rather the one species of special protection under the law should be Natural attributes and physical attributes are the two basic properties of human organs, and organs of these two properties determine their natural disposition of human organs with limited rights, on the grounds that: human organs as a and can not be the subject of legal relations, but only as a legal relationship may be the object of existence, which is the subject of legal action between the basic human organs provide the legal basis. However, although human organs can become the object of legal relations, but because of its legal relationship as the main component of personality formation and have not as their subjects from the original disappeared as soon, on the contrary, characteristics of human organs being donated has been implanted in the main body before the other is still there, and became law on human organ is different from an important aspect of the matter This determines that any of this Specific to the field of criminal law, human organs or tissues of this particular to pursue the relevant provisions of the criminal responsibility of perpetrators. (C) of the doctors of the legitimacy of the removal of dead bodies organ removal on the medical validity of the body organs for transplantation, most scholars are based on the interests of the measure in the position to be the argument. Most scholars believe that the life of any people are of the highest interest, therefore, opposed to the interests of the living, the deceased's interest can only be of secondary importance. Despite the removal of body organs for transplant resulted in some violations of the deceased, but the traditional legal theory and legal practice are that the deceased only as a legal relationship between the object and not as a legal subject, therefore, that the relative harm to society against the small, does not have the criminal. In the objective, this behavior has saved the life of another individual, and its essence is a relatively small benefit in exchange for a greater good, is for a crime. Moreover, ethics, and removal of organs from cadavers for transplantation on the behavior of the noble sense of salvage receptor, which is recognized as a social movement and commendable idea. This as a starting point, the removal of body organs for transplantation should be an act of sexual conduct with a social rather, who denied the removal of organs from cadavers for transplantation is clearly inhumane practice should not be advocated for the legislation. However, some scholars believe that the behavior of doctors harvesting organs of the body damage the body should be constituted the crime. Intent of the Crime of the body damage is to protect the feelings of the bereaved families of the deceased,[link widoczny dla zalogowanych], even if the body has the right to dispose of people who may be guilty of the crime, in other words, even if a managed disposition of the body, or even obtain consent before his death I still can not Hindered from Illegal removal of organs of the body [16]. I believe that from a legal point of view, life, law is the law of bioethics, ethics in the diversion from the life out of a rigid social code of conduct, it is the minimum to maintain the life of ethics. Law as a law of life to life subjects for the study of law is based on the theory of life as a source of ethics. Therefore, the phenomenon of life, many of the problems the law must find from the theoretical support of bioethics. The standing position of bioethics perspective, no one is equal, independent of the subject, they alone have the right to dispose of their highest interests, ]. This as a foothold, whether it is the removal of organs for transplantation in vivo, or removal of body organs for transplantation, must be based on respect for the autonomy of organs on the basis of the owner. Any violation of the principle of autonomy is to obtain organs for life ethical behavior will not be tolerated, is improper, it will depend on the existence of human society's impact on the ethical order of life, thus endangering the stability of the whole human society. For this act, the law must be clear-cut stand against, but not acquiescence and connivance, but not advocacy. Contrary to the principle of autonomy for those who use organs and cause serious social harm behavior, criminal law should be held criminally responsible. Therefore, doctors justify the removal of body organs should also be based on informed consent. But even in the case of informed consent, it must first meet certain conditions, for example, should be in line with the provisions of the law does not violate public order and good morals, with a medical adaptation, in line with operating conventional medical treatment and good prognosis. Otherwise, as noted in the latter view, even managed disposition of the body, or even obtain consent before his death I still can not negates the illegal removal of organs from the body of. (D) whether the removal of brain death constitutes a crime cadaveric organ transplantation in the body, the contentious issue of brain death by Dr. Mo Guoyu removal of organs for transplantation whether the conduct constitutes a crime. Overall, national scholars generally agree that doctors were harvesting organs of the behavior of brain death has not been pre-deceased my (not yet entered the brain injuries in their conscious state and time) or their families consent, the act constitutes a crime . But in what constitutes a crime above the recognition of brain death and brain death does not recognize the country or region often has quite different. Specifically, the legislation has recognized countries and regions of brain death, usually that the doctor without the consent of the removal of brain death organ damage to the body constituted the crime or offense against the dignity of the deceased; in that legislation has not yet brain-dead state to grant and regions, such acts constitute intentional homicide. Then, doctors have to obtain consent for the removal of organs for transplant Brain death act of how qualitative it? In this regard, the views of scholars are not consistent. In Japan, most scholars believe that, if the recognition of brain death, then on the basis of consent, the doctor who can be brain-dead organ removal for transplantation but not a crime, that is, consistent with damage to the body in shape elements of the crime, but, usually, due to migration and access to the benefits (to maintain or extend the lives of those who are implanted) because the removal of organs than the negative (against the body of a donor pious feeling) is much greater, therefore, the behavior of transplanted organs is lawful, And with this relatively small number of scholars believe that, even if does not recognize brain death, organ if the consent of the provider during his lifetime, may also the removal of his organs for transplant, but even agree, that would constitute murder, still can be fined [18]. I think that in the current development of human medicine is the brain-dead person has demonstrated a real case of death, and adhere to the traditional concept of cardiac death is in fact a rejection of human civilization. The law should be to guide the people of the concept of The removal of the behavior of brain death organ. So, for those who have received consent for the removal of brain death organ transplantation act of medical personnel, law not to be the crime, but not their families to penalties. (V) theft and how to force the removal of other organs should be held criminally responsible a therapeutic act, but by the patients who have ethical, social correspondence, therefore, get the donor heart's consent, negates its illegality, not a crime to harvest organs. 185 However, once a donor organ donation violates the free will, because contrary to public order and good will lose its popular legitimacy as a serious harm to society of criminal behavior. Currently, the organ in the human body there is a dispute on a qualitative, scholars have to steal other people to force the removal of organs and other organs which constitute criminal acts should be held criminally responsible and how the problems there are serious differences. Specifically: (1) the issue of stealing other organs, mainly the two diametrically opposed views. The first view is that, to steal another organ, tissue, semen, blood, can only be regarded as an infringement of ownership, and does not constitute an infringement of the right of personality [19]. Anchored, steal another organ or tissue, should constitute a theft, the offender shall be investigated for criminal liability for theft. In contrast, the view is that human organs is an important part of the body, with a clear personality, even if the body's tissues and organs has left the body, and should be regarded as part of the body, and can not simply be as a general matter [20]. Therefore, in this case, stealing body parts of others does not constitute an act of theft, and dignity should constitute a crime against the person (such as insulting the crime), should be based on criminal responsibility. (2) the removal of bodily organs to force the issue, there are two views. Some scholars believe that the scope of human organs are objects, the strong pick bodily organs constitutes robbery, robbery to be held should be in accordance with the criminal responsibility of perpetrators. However, some scholars believe that human organs are not material, it still belongs to the category of people, strong pick the behavior of other body organs shall constitute the crime of illegal detention or intentional assault. To this article on the nature of human organs is defined as a foothold, I think that, whether it is stealing other people's behavior, or organ other organs act strong pick, do not constitute a theft or robbery, sexual crimes of property. As these acts against the object and objective aspects of the specific differences in what constitutes a crime which it will be investigated for criminal responsibility according to which the crime, as the case may be a specific analysis. 1. Steal other organs of the criminal different according to a crime against the theft of the behavior of other body organs can be divided into stealing the living body of the deceased body organs and organ theft of two cases. In two different cases, the perpetrator would constitute a different crime, and shall be punished according to the different criminal responsibility. First of all, living on the stolen body parts, it should be specifically distinguish between two cases: one in the living organ theft occurred incidental to cause serious injury or death results; the second is without prejudice to the case of life and health of others theft of body parts of others (such as stealing another person bone marrow, blood, skin, eggs, etc.). To the first case, this behavior actually constitutes a And for the second case, it will be in the

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