论脱离人体的器官的法律属性——与“二元区分说”商榷及对“人身之外”的理解

On the nature of the organ separated from the human body——discussion on the understanding of outside the body with the two-way distinction theory

器官的法律属性争议焦点在于脱离人体的器官属于人格权范畴还是物权范畴。"二元区分说"认为,活体内器官属于人格权的范畴毫无异议;而其认为脱离人体的器官为物权范畴则不可简单接受,脱离人体的器官为人格权范畴,并非所有"人身之外"的权利客体都属于物权范畴,应尊重人的尊严,以防人被物化,厘清"人与‘人身之外’的物"的界限。

The discussion on the nature of the organ focuses on the organ separated from the human body which is classified as the personality or property category. It has not controversy that the vivo organ belongs to the personality right be considered by the theory of ＂two - way distinction＂ ;Howerer, it is not accepted that out of the body＇s organs belongs to the property be considered by the theory. The research on the theory through the cases at home and abroad reaches conclusion which the separated organ belongs to the personality category. Respect the human dignity in case the human is regarded as a thing. Clarify the distinction between the human and the thing outside the body for the theory of civil law.