人体组织“财产”论批判性思考

Critical Reflection on the Property Argument of Tissues from Human Body

我国民法界一般认为,与人体分离的组织和器官为"物",可以享有物权保护方式。这一观点在语言表达语境上存在缺憾。英美司法不太情愿将人体组织放在"财产"概念下去考察,这与人体组织的非财产化这一普通法原则是吻合的。人体组织财产化存在诸多负面影响。它的功能可以用知情同意和人格权保护达到。

In the field of civil law in our country, tissues and organs, once separated from human body, are generally deemed as a kind of property and they can enjoy the special protection available to property. However, the prop- erty argument is unsatisfactory because of language expression. In USA and UK, courts are reluctant to see human tissue under the concept of ＂property＂. This reflects the common law rule that there is no property on human tissues. The property argument of human tissues has many negative implications and its functions can be achieved by informed consent and personality protection.