论《刑法修正案(八)》中的人体器官犯罪

On Crimes Related to Human Organs in Amendment VIII to the Criminal Law

在《刑法修正案(八)》颁布之前,对非法买卖人体器官行为以非法经营罪加以认定,可以说是在法律未对非法买卖人体器官犯罪加以明确规定的情况下司法机关所采取的权宜之计。《刑法修正案(八)》对人体器官犯罪的规制,有助于从根本上惩治人体器官犯罪,强化刑法对民生的保护。《刑法修正案(八)》第37条所规定的人体器官犯罪涵盖了组织出卖人体器官罪、故意伤害罪、故意杀人罪和盗窃、侮辱尸体罪等四种犯罪。作为人体器官犯罪的对象,人体器官既包括活体器官,也涵盖尸体器官,但不包括同属人体材料的人体组织和人体细胞。在"摘取未满18周岁的人的器官"的场合,只有在行为人明知被害人未满18周岁的情况下才能认定故意的成立。《刑法修正案(八)》未将单位规定为人体器官犯罪的主体,且在对精神病人人体器官的特殊保护方面处于缺位状态,这实属立法缺憾。

Before Amendment VIII to the Criminal Law was promulgated,the act of buying and selling human organs illegally was determined as crime of illegal business operations,which was a short-term expedient for judicial authorities since there were no explicit stipulations about crimes concerning illegally buying and selling human organs in the law.Regulations concerning crimes related to human organs in Amendment VIII to the Criminal Law help to punish such crimes fundamentally and thus reinforce the protection of people＇s livelihood.Crimes related to human organs as promulgated by Article 37 in Amendment VIII to the Criminal Law include crime of organizing the selling of human organs,crime of willful and malicious injury,crime of intentional homicide ad crime of stealing or insulting the corpse.As the objects of crimes related to human organs,human organs include both the organs from living humans and those from corpses but not human cells and tissues.Only when the actor knows that the victim is under 18 years old,can the intention of ＂harvesting any organ of a person under the age of 18＂ be determined.However there are still some defects in Amendment VIII to the Criminal Law,for example,the subjects of crimes relating to human organs do not include working units and there are no stipulations about the protection of human organs of the mental patients.