Reconstruction of Theoretical Bases for Medical Criminal Law

这项研究是由首席调查员在1998和1999学年单独进行的。其目的是重构在讨论自己或他人身体部位处置权问题时出现的一些基本法律概念，为医学刑法的发展提供坚实的理论基础。一般借助跨学科和比较法研究来审查人的尊严、自决权、人格权和身体部位财产权等概念。这一特别努力是为了排除讨论似乎被严重扭曲的那些概念中的情绪化方面。为了避免这种模糊和抽象的论证，本研究项目的最后报告将人体器官交易罪挑出来作为典型的背景。如报告所示，禁止人体器官和…的法律以及哲学和经济理由更多的身体部位交易被批判性地分析，并以理论上不足为由拒绝。尽管由于没有明确界定人体器官和身体部位交易的允许范围，首席调查员必须承认结果仍然不完整，但他也相信研究结果的重要性，作为这样一个结果的理论基础：第一，人体器官和身体部位不能也不能被视为财产权的客体。其次，人的尊严和人格权的概念所表明的物质本身并不一定能够确立禁止人体器官和身体部位转让(而不是交易)的法律合法性。第三，允许转让的标准是一个人的自决是否符合特定社会所拥有的一种价值秩序，例如，是不是人体器官‘有偿’转让，或者是‘对特定种族、性别、年龄、体力等的个人’的转让‘。然而，第四，特定社会拥有的这种价值秩序本身仍然不成熟，不合理地与可以从例如社会成本考虑引入的外部标准分开。较少

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