组织出卖人体器官罪的基本问题

Basic Issues Relating to the Offence of Organizing Others to Sell Human Organs

组织出卖人体器官罪的"人体器官",不能按照《人体器官移植条例》确定,而应当根据刑法的目的与用语可能具有的含义确定;应当承认违法的相对性,本罪的被组织者对自己的伤害结果不成立共犯;组织是指使他人出卖人体器官的一切行为。对自己决定权的尊重存在一定界限,被害人对重伤害的承诺原则上无效,只是在例外情况下阻却伤害行为的违法性;出卖器官的承诺存在自主缺陷,因而不是有效的承诺。本罪与故意杀人罪、故意伤害罪不是对立关系,以强迫、欺骗方法组织他人出卖人体器官的,同时触犯本罪与故意杀人罪、故意伤害罪,从一重罪论处。

The Human Organs prescribed under the Offence of Organizing Others to Sell Human Organs(hereinafter 'this Offence') cannot be narrowed down to the prescription under the Human Organ Transplants Act,on the contrary,it should be interpreted according to the purposes of the criminal law and the possible meanings which might be provided by the term.The relativity of unlawfulness should be accepted,thus the Others who are organized to sell their human organs cannot constitute secondary participants to this Offence for the bodily injury to themselves;the Organizing of this Offence refers to any act that instigates others to sell human organs.There is certain limitation for the respect of the self-decision making right.In principle,the consent to endangerment which might incur life-threatening harm is of no effect,the general unlawfulness of intentional injury can only be abolished under particular exceptional cases.The consent to sell human organs has intrinsic deficiency,thus such consent is to be void.The criminal articles which prescribe this Offence,the offence of intentional killing and the offence of intentional injury are not in a relationship which is in opposition to each other.Where the actors organize others to sell human organs by the means of threats or force,deception,and violate the offence of intentional killing,the offence of intentional injury and this Offence simultaneously,such actors shall be punished by the most felonious offence among the above.