Reconstruction of Theoretical Bases for Medical Criminal Law

这项研究是由首席研究员在1998和1999学年单独进行的。其目的在于重构在有关身体部位处分权的讨论中出现的一些基本法律的概念，为医疗刑法的发展提供坚实的理论基础。对诸如人的尊严、自决权、人格权和身体部位的财产权等概念，一般都借助跨学科和比较法律的研究加以审查。特别努力排除这些概念的情绪方面，因为这些概念似乎严重扭曲了讨论。并且，为了避免模糊和抽象的论点，人体器官交易罪被挑选出来作为本研究项目最后报告中应涉及的典型背景。如报告所示，禁止人体器官移植的法律的以及哲学和经济理由， ...更多信息 d身体部位交易经过严格分析，并因理论上不足而被拒绝。虽然，由于没有明确界定人体器官和身体部位交易的许可范围，首席研究员必须承认，结果仍然是不完整的，他也相信在研究中获得的结果作为这样一个结果的理论基础的重要性：首先，人体器官和身体部位不能也不应该被视为财产权的对象。其次，人的尊严和人格权概念所指的内容本身并不一定能够确立禁止人体器官和身体部位转让（而非买卖）的法律的正当性。第三，移植的许可性标准是个人的自决权是否符合特定社会的价值秩序，例如，人体器官的移植是否“有偿”，是否“向特定种族、性别、年龄、体力等个人”。然而，第四，特定社会所拥有的这种价值秩序本身还不成熟，并且与可以从社会成本考虑等引入的外部标准不合理地分离。少

This Research was conducted by the head investigator alone through the 1998 and 1999 academic years. Its purpose were to reconstruct some basic legal concepts that appear in the context of discussion over entitlements for disposition of one's or other's body parts and to offer firm theoretical bases for the development of medical criminal law. The concepts such as human dignity, right to self-determination, right to personhood, and property right to body parts are generally examined with the help of interdisciplinary and comparative legal studies. The special effort was made for exclusion of emotive aspects of those concepts by which the discussion seems to have been miserably distorted. And, to avoid the vague and abstract argument,the crime of human organ trading was singled out as the typical context that should be addressed in the final report of this research project. As the report shows, the legal as well as philosophical and economical reasonings of prohibition in human organ an … More d body parts trading were critically analyzed and turned down as theoretically insufficient. Although, being without the clear definition of permissive scope of human organ and body parts trading, the head investigator must admit that the result is still incomplete, he also believes in the importance of the findings gained in the research as the theoretical bases of a such a result : Firstly, human organ and body parts cannot and must not be perceived as objects of property rights. Secondly, substances indicated by the concepts of human dignity and right to personhood are not necessarily able to establish the legal legitimacy of prohibition of human organ and body parts transfer (not trading) themselves. Thirdly, the criterion of permissibility of the transfer is the conformity of one's self-determination with an order of values owned by a particular society, For example, is a transfer of human organ 'paid' or not, or 'to the individual of specific race, sex age, physical strength, and so on' or not. However, fourthly, such an order of values owned by a particular society is itself still immature and unreasonably separated from external criteria that could be introduced from, for example, social cost consideration. Less