"Criminal law amendment (eight)" (hereinafter referred to as the draft "draft") will be the sale of human organs behavior into criminal law field of vision, "draft" in the provisions of article thirty-fifth, article 234Th of the criminal law (the crime of intentional injury) by adding a new crime of illegal trade in human organs, as one of 234Th: the organizing others betray body organs, a criminal detention, and shall also be fined, for without the consent of the organ harvesting from, or under the age of 18 organs, or force, deceive others donate organs, take the body organs against their wishes, or I was not agreed, in violation of state regulations, take the body organs against their close relatives will, also will be punished for the crime of illegal trade in human organs. This clause if passed by the National People's Congress, will make up the blank criminal legislation of our country trade in human organs, to promote our country's legislation of organ transplantation is complete, so as to better protect our people's right to life and health, promote the healthy development of China's organ transplant technology and pharmaceutical industry has very important value. The author intends to make a brief analysis on the construction of the illegal trade in human organs crime.

One, add the illegal trade in human organs crimes

Add 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 unambiguously 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, can not be in accordance with the law or have abnormal light of the embarrassing situation, and through increase penalties on illegal trade in human organs', criminals will deter the illegal trade in human organs, reduce the sale of human organs behavior, harmonious and healthy development and safeguard and promote human organ transplant technology and society.

(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, in order to implement the regulations on criminal liability provisions in the criminal law, and the "Human Organ Transplant Ordinance" more coordination, it is necessary to the human organ transplant crime into the regulation of criminal code.

Criminal regulation on the sale of human organs act two, the countries all over 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.

Three, improve China's "criminal law amendment (eight)" some suggestions on draft article thirty-fifth

"Draft" thirty-fifth will be on the human organ's actions were distinguished, for without the consent of the organ harvesting from, or under the age of eighteen organs, or force, cheat others to donate behavior according to the crime of intentional injury to the conviction and punishment; against their wishes from the body organs, or I he did not agree, 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 organizing others betray body organs, the new crime of organizing others betray body organs. "Draft" Regulations on illegal trade in human organs, is conducive to curb the illegal trade in human organs activity situation, in line with China's social reality. On the one hand reflects the criminal law the principle of suiting punishment to crime, can maximize the method guidance, evaluation, prediction effect; on the other hand also embodies the modesty of criminal law, showing a "cautious punishment thought". Worthy of recognition. At the same time, the author thinks that the "draft" still need further discussion and improvement in legislation.

(a) to sell their organs can conduct constitutes a crime

The natural person has the freedom to dispose of his body to the right, to cut off the hair, to end their lives, though the law does not promote, but also not prohibited, unless a specific time, such as during wartime injures himself to military duty. Thus, the natural person in general to dispose of their organs should also be free. The criminal law amendment (draft eight) only for organizing others betray body organs of behavior to be convicted and punished, and sell their organs of criminal law have not been adjusted. However, this provision may lead to two problems, one is the behavior betrayed their body organs, and wantonly spread, forming a bad atmosphere, similar to the parts of the blood selling behavior, thereby affecting the overall health of the citizens and social stability; two is the intermediate organizers deliberately hide themselves, the donor pushed in front, adding case for the difficulty, not conducive to the crime of. In addition, for the purchase of human organs is need to be treated with the penalty, is also controversial. The author thinks, the natural right legal protection of human body, it has the right of disposal over his own body, thus to sell their organs to punish criminal means is not appropriate. At the same time, the human organ buyers, to a large extent, is to solve their own patients, the continuation of life, so if the most severe criminal sanctions loss of humanity. Therefore, for the illegal trade in human organs, only punishment intermediate organizer is more appropriate, necessary. In addition, in order to meet the need of organ transplantation, the appropriate expansion of the organ trading range at the same time, the inevitable need supporting organ trading rules, procedures, and therefore, the criminal law needs to adjust only the violation of legal procedures, illegal organizing others betray body organs. So it is suggested to be the charges identified as illegal organizing others betray body organs crime, describe it as: in violation of state regulations, organizing others betray body organs, is less than five years imprisonment, fined; if the circumstances are serious, department for more than five years in prison, and concurrently be sentenced to a fine or confiscation of property.

(two) to determine the sale of human organs

Due to sell their organs can be convicted controversial, thus to determine the accusation of the crime to sell human organs, the sale of human organs and the crime of organizing others betray body organs such as the crime of multiple views. Recommendations revise "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. The author advocates will charges determined to sell human organs of crime, the subject of crime to sell their organs and organizing others betray body organs; that will determine the sale of human organs for the crime, the crime subject to sell their organs, organizing others betray body organs and the purchase of human organs should be determined; charges for organizing others betray body organ, its subject of crime for the organizers, not subject to criminal punishment of the seller and buyer's own organs.

(three) should be stipulated the unit crime of the crime of illegal trade in human organs

Although the case has already appeared, the illegal trade in human 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 from the unit organizing others betray body organs of behavior, 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 organizing others betray body organs shall be punished as an accomplice in the crime. Therefore, adding the crime of illegal trade in human 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.

(four) 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.