By February 25, 2011 eleventh session of the National People's Congress Standing Committee of the nineteenth meeting of the "PRC Criminal Law Amendment (eight)" (hereinafter referred to as the "criminal law amendment (eight)") thirty-seventh specific to the sale of human organs behavior into criminal law perspective, this clause, fills the gaps in the criminal legislation of our country trade in human organs aspects, to promote the legislation of organ transplantation in China is complete, so as to better protect our people's right to life and health, and promote the healthy development of China's organ transplant technology and pharmaceutical industry has very important value. The author intends to "criminal law amendment (eight)" understanding and application of article thirty-seventh to talk about bit of shallow understanding.

Criminal regulation on the sale of human organs, behavior of the world

The world has many national and regional laws on the sale of organs of criminal liability. For example, the French penal code in 1994 the sale of human organs, crime, crime of forced removal of human organs, medical institutions to carry out illegal human organ transplant crime and crime of trafficking in human organs, belong to the human organ transplant related crimes. According to the law, the drawee has organ behavior from the person, no matter how the form, in 7 years of imprisonment and a 100000 euro fine; to act as an intermediary, to provide convenient conditions or transfer to others in human organs for payment made human organs, the same penalty.

Russian criminal law, in order to transplantation, by violence or threats of violence forced removal of other organs or tissues, sentenced to 4 years deprivation of liberty, may be 3 years deprivation of a certain positions or engage in a right to work; knowing that others are be isolated and helpless state or in the material or other people from crime belongs to the implementation of the above behavior, sentenced to two years in more than 5 years deprivation of liberty, may be 3 years deprivation of rights for certain positions or engage in certain jobs.

The provisions American Organ Transplant Act, any person in order to obtain considerable return deliberately get human organs, receiving human organ or transfer of human organs for transplantation, it is illegal. Violation of this rule will be fined $50000, fined or five years imprisonment, or at the same time, sentenced to imprisonment and a fine of.

Britain provides the human organ transplant act, any of the following acts constitute a crime: first, from the dead or the man made for transplant human organs to do business transactions; second, released the purchase or sale of organs advertising; third, the illegal disclosure of the transplant operation data.

Italy Penal Code stipulates the crime of illegal use of the body, which is not allowed in the case law, in order to scientific or teaching purposes, anatomical or otherwise using body or a part thereof, shall be not less than 6 months in prison or be fined 1000000 lire.

China's Macao region on the organ transplantation crime provides very specific, and has strong operability. The following Macao to donate, remove and transplantation of human organs and tissue for the purpose of legal specific criminal penalties for organ transplant behavior: first, if the killing for removal of organs or tissues from cadavers, application of aggravated homicide is punished; second, if the purchase or sale of a body organ or tissue others, or because the delivery of human organs or tissue to others and pay or receive money, regardless of the manner in which the propaganda or allowed to preach the organ trading, where up to 3 years in prison or a fine of 360 days. In addition, in order to prohibit the organ trading activities, the attempted crime and punishment; thirdly, to breach the donated free of the punishment, namely because donated organ or tissue collection or payment and repayment and pay the relevant expenses and receive from the burden of the people, course at 1 years in prison or to a maximum of 120 days. Violation of donated free of the attempted offense is punished; fourth, violation of self living organ in the legal system of obligation is not permitted, such as for diagnostic and therapeutic purposes and organ, tissue, or without court permission, as minors gather nonrenewable organs act, the highest class of 3 years in prison; fifthly, violation provisions shall take in the system of in vivo agree removal regulations and for minors and mental patients special protection, such as donors without written consent of the will for their organs removed, at up to 3 years in prison.

The law relating to the sale of organs of the comprehensive analysis of the world and area, it is not difficult to find that has the following main features: first, many countries and regions in the world of law will most likely to profit for the purpose of organ trafficking, without the consent of others to violence or threat is forced removal of human organs and other serious violations the health of the citizens, the right to life of the Act provides for the crime; secondly, many countries and regions of special groups, such as the minors or mentally ill, give special protection, emphasizing the harvesting their organs to heavier punishment; thirdly, the body organs in some countries used to regulate. Fourth, the law in some countries the sale of organs crime as heavy emphasis on crime, accomplice, accomplice and attempted crime should also be investigated for criminal responsibility corresponding; fifth, in sentencing, mainly to light punishment, and impose additional punishment for the corresponding.

Two, China's "criminal law" with the illegal trade in human organs crimes

China's "criminal law" with the illegal trade in human organs crime, and the fast development of the organ transplantation technique, a key link in the development of organ transplant technology lies in obtaining the donor organ, but the current serious shortage of donor organs, how to alleviate the organ supply and demand imbalance has become a global problem. Because in the rights protection has already become the main theme of the times background, the human organ transplantation can only be established on the basis of voluntary donation, civilized and human awareness of life ethics can only be more hope that the social civilization and improvement. The law in this aspect also needs some as, that it will change for the progress of human civilization and life consciousness to guide the system. The sale of human organs seriously violate the medical humanitarianism, with serious social harm, not only causes a series of crime, and the donor, organ trading intermediary organizations may be driven by economic interests, deliberately conceal the organ damage or lesions of the facts, so that the quality of the donor organ no guarantee, but a few medical personnel involved it violates the ethics, more damage to the medical industry image. Therefore, through legislation specifically crime attributes, the illegal trade in human organs from the root to crack down on illegal trade in human organs is imminent.

(a) to ensure our people's rights of life and health

China human organ transplant legislation is to protect the people's right of life and health as the core and the highest goal, common task of protecting people's rights of life and health is China's criminal law and related laws and regulations, local laws and regulations. At present, the illegal trade in human organs behavior, a donor may be forced to sell their organs in desperate poverty situation, some people in the labor ability to lose the sale of body organs, quality of life, it is difficult to maintain; on the other hand, the illegal trade in human organs resulting in decreased organ and transplantation quality, also threat to the life and health of the receptor in a certain extent. The illegal trade in human organs as a crime behavior, not only to meet the requirements of criminal jurisprudence, but also can reduce the illegal trade in human organs occur in large extent, it is of great significance to ensure our people's rights of life and health.

(two) to limit the sale of human organs, maintaining social harmony and stability

The illegal trade in human organs with serious social harm, may cause the illegal crime series, such as theft, smuggling of human organs, illegal trafficking in women, children, the illegal trade in human organs has become a major problem of modern civilized society. Different from the past only to laws and regulations of the illegal trade in human organs fines and other partial light punishment, "criminal law amendment (eight)" clearly the qualitative behavior of the illegal trade in human organs for criminal behavior, instead of punishing the illegal trade in human organs to a certain extent, no laws or have abnormal light of the embarrassing situation, and through the increase penalties on illegal trade in human organs, the criminals will deter the illegal trade in human organs, reduce the sale of human organs acts, and maintain and promote harmonious and stable human organ transplant technology, health and social development.

(three) a clause of criminal responsibility for the "Human Organ Transplant Ordinance" is implemented in the

The State Council passed the "Human Organ Transplant Ordinance" in March 21, 2007, which is conducive to standardizing the administration of human organ transplantation, ensure medical quality and medical safety, maintenance of organ donors, patients, medical institutions and medical personnel to the legitimate rights and interests, make this medical results to the benefit of the masses. In order to better enable the regulations are effectively implemented, the provisions of the relevant legal liabilities in the fourth chapter, one of the twenty-fifth special provisions of criminal responsibility should be investigated: (1) without the consent of its citizens from living organ; (2) the citizens had shown does not agree to donate their organs. From the body organs; (3) the living donor organ under the age of 18 years of citizen. The criminal law in civil law, administrative law and a law based the first law of normal social relations, for serious illegal acts first law invalid by method shall be investigated for criminal responsibility, discretion and execution of the second adjustment. In the criminal law and the protection of the "first law" relationship, should reflect the coordination of the two, the law as a national system should be unified maintain the logical. Although the "Human Organ Transplant Ordinance" provides the criminal responsibility of the situation, but China's current criminal law provisions are not related to the human organ transplant crime, which makes the operability greatly reduced this clause, so that the Ordinance to lose effectiveness of the law. Therefore, the "criminal law amendment (eight)" promulgated, will be incorporated into the human organ transplant crime related to regulation of criminal code. The "criminal law" and the "Human Organ Transplant Ordinance" more coordinated, so that "clause of criminal responsibility of the human organ transplant regulations" in the implementation of.

Three, "organizing others betray body organs of the judicial determination of the crime"

"Criminal law amendment (eight)" thirty-seventh of the crime on human organs were distinguished, for without the consent of the organ harvesting from, or under the age of eighteen organs, or force, deceive others donate behavior with intentional injuries convicted and punished; for the removal of the body organs against my wishes, or I was not agreed, in violation of state regulations, take the body organs against their close relatives will act, shall be punished in accordance with the conviction of theft, the crime of insulting corpse; for others a selling of human organs, separate conviction and punishment.

A pair.Organizing others betray body organs"Counts of the determination of accusation

For the provisions of charges, some people think that the use of "organization sell human organs sin", some people think that use the "organization of the sale of human organs crime", some people think that the use of "organization crime of trafficking in human organs", I think that the use of "organized crime of trafficking in human organs" more appropriate. According to the literal sense, "sale" includes buying and sale, is a kind of transaction, two-way commercial behavior, with its "trafficking" is a word connotation. And "betray" is only one of the selling behavior, there is significant difference between them. From the organ crime situation, basically have the following kinds of behavior: one is the "black intermediary" organizing others betray their own organs; two is the behavior of the person who is mainly engaged in the acquisition of "black intermediary" the organ, and then sold to others; three is the behavior person to acquire human organs as the main activity, its acquisition object contains to steal, damage, killing the means and the organ, and intentions to engage in selling activities. The first kind of behavior is a typical "organizing others betray body organs" behavior, the latter two are mainly manifested in the "sale", but after two kinds of behavior are often closely linked with the former black transactions. In reality, human organ of the black market is often appears as a black business chain form, different from the usual organized crime. So, I think about all these for-profit organization of human organs, others buy sell human organs behavior should be included in the scope of the crime. Therefore, the charges as "organized crime of trafficking in human organs" is more appropriate.

(two) aThe characteristics of the crime of trafficking in human organs and tissues

The organization crime of trafficking in human organs, means in violation of state regulations, acts of illegal organizing others betray body organs. It has the following characteristics:

1The object of the crime.The object of this crime is a citizen's rights of life and health, public health security and medical order management system, organ transplantation.

2The objective aspect, crime.This crime objective aspect is illegal organizing others betray body organs, the crime is the behavior crime, as long as the implementation of the illegal organizing others betray body organs acts constitute a crime.

3The subjective aspect, crime.In the subjective aspect of this crime can only be constituted by intent, negligence does not constitute a crime, the crime is for the purpose of making profits, in general, organizing others betray body organs of behavior for the purpose of making profits, but not the objective elements.

4The subject of the crime.The subject of the crime is the general main body, is the natural person has the ability to complete criminal criminal.

(three) the organization crime of trafficking in human organs and grasp

1The behavior of objects, for human organs.The organ is composed of many organizations can exercise a (special) unit of structure function. According to the "Human Organ Transplant Ordinance" second stipulates: "in the human organ transplant in the territory of the people's Republic of China, this regulation is applicable; engaged in human cells and cornea, bone marrow and other human tissue transplantation, this regulation does not apply to. "Human Organ Transplant Ordinance, refers to the removal of human organ donors with a specific function of heart, lung, liver, kidney or pancreas and other organs in whole or in part, process into the human body to accept the organ lesions instead." Therefore, the human organ is the organ of the body donors with a specific function of heart, lung, liver, kidney or pancreas and other organs. Like the cornea, blood, bone marrow, and embryonic stem cells, the object of crime does not belong to the.

2This crimeOnly punishment intermediate Organizer. The so-called "organization" refers to the act of implementation of leadership, planning, control others to the specified behavior. "Human Organ Transplant Ordinance" third stipulates: any organization or individual shall not in any form of sale of human organs, and shall not engage in the sale of human organs related activities. Organizing others betray body organs of behavior refers to the organization, designedly organizing others betray body organs of behavior. Organizing others betray body organs to lure, to attract others to sell human organs, for organ procurement procedures, arrange the organ removal mechanism, etc..

3To grasp the problem, transformation of trafficking in human organs and crime of intentional injury crime.The organization crime of trafficking in human organs organizers tend to pay compensation to the organ donors as bait, sold to others organs. The selling behavior should be based on the consent of the victim, the victim can be aware of its behavior is the selling of organs, and can recognize the impact that sell organs on the body caused by. If the victim is not the consciousness, the organizer has infringed the victim's free meaning, contrary to the independent choice of the organ donation awareness, in this case the organizer behavior beyond the "organization" category, has the right to physical health threatening, in accordance with the provisions of the second paragraph of this article shall be in accordance with the crime of intentional injury treatment.

Four, on the further perfection of legislative proposals

(a) update the "Human Organ Transplant Ordinance", appropriate to expand the scope of the trade in human organs.In view of the practical need of medicine, number of organ transplant patients is numerous, and in accordance with the regulations can be scanty provide organs, from the objective to stimulate the sale of human organs "black market" formation and profiteering. To fundamentally solve the organ transplant disorder phenomenon, can cancel the absolutely prohibits the sale of human organs, and is dominated by the government and authorized qualified, qualified agency, specialized organizations like blood, bone marrow library, a comprehensive collection of master voluntary donations or betray body organs of the information and the needs of human organ transplant recipients of information, by the organization to provide trading platform, the maximum possible to standardize the human organ trading order, solve the pain for organ transplantation receptor.

(two) the provisions of unit crime should be the trafficking in human organs crime.Although the case has now emerged, organizing others betray body organs is the crime of natural person (including the common crime), did not involve the unit, but with the development of society, it is hard not appear behavior by the unit of organizing others betray body organs, in fact a lot of occupation intermediary is showing a tendency to unit the. According to the "Human Organ Transplant Ordinance" article tenth, living organ to accept a person is limited to living organ donors spouse, lineal relatives by blood or collateral relatives within three generations, or there is evidence that living organ donors exist for supporting the formation of the personnel relationship. Therefore, in order to meet this requirement, the intermediary organization sell human organs tend to handle the entire process by other units or organizations, such as the seal, ID card, proof of kinship, notarization, so that the donor conforms to the "Human Organ Transplant Ordinance" requirements, on the other hand, are likely to cooperate with medical institutions a qualified medical institutions to provide convenient, let people for its smooth organization sell human organs. In this case, if the other organization or medical institutions prior knowledge, intermediary and organization sell human organs of a de facto accomplice, should be based on the organization crime of trafficking in human organs shall be punished as an accomplice. Therefore, adding the crime of organizing others betray body organs, not only can the strict criminal law net, intensify efforts to punish the illegal trade in human organs behavior, but also reserve the space for new situations may arise in the future from the criminal law, the criminal law so as to increase the reality of society adapting ability.

(three) to carry out criminal regulation of tissue acquisition of human organs.A seller must have acquired behavior. In reality, because the person receiving information Co., need to sell human organs and individuals (donor) tend to be responsible for the intermediary organization sell human organs through the Internet and other forms to the contact, by the intermediary to contact the need to buy the individual human organs (receptor). However, as a person, receptor the received information is limited, it often will contact the intermediary responsible for the acquisition of human organs to get information about the donor, and the illegal trade in human organs is actually more performance between the intermediary and the intermediary. There are intermediary organizing others betray body organs, certainly there is an intermediary organization responsible for the others to buy human organs. The author thinks, the organization bought human organ behavior of social and penalty when it had no difference penalty and organizing others betray body organs, would both into the criminal law field of vision.