医师故意移植非法来源器官的刑法规制

Criminal Regulation on the Act of Doctors' Deliberately Transplanting Illegal Source Organs

现行法规对医师故意移植非法来源器官行为的归责并无明确的规定,该行为具有严重的社会危害性,刑法有介入的必要。由于组织出卖人体器官罪的法益是人格尊严和医疗管理秩序,那么组织行为的完成即认为该罪既遂。所以即使医师明知移植的器官来源非法,但因其只有单纯的器官摘取行为,故并不能够将其认定为组织出卖人体器官罪的共犯。医师摘取器官的行为显然已伤害他人身体的完整性,该当故意伤害罪的构成要件,且不能以紧急避险和被害人的承诺阻却其违法性。因此,医师故意移植非法来源器官的行为可以故意伤害罪归责。

There are no clear laws and regulations to punish doctors who deliberately transplant illegal source organs.These behaviors have serious social harmfulness,and the criminal law intervention is necessery.Because the legal benefit of organizing and trading human organs is personal dignity and the order of medical administration,the completion of organizational behavior is considered as the completion of the crime.Therefore,even if the doctor knows the source of transplanted organs is illegal,due to his simple act of organ extraction,he can not be regarded as an accomplice of organizing the crime of selling human organs.The behavior of doctors harvesting the organs has obviously harmed the integrity of others’ bodies.This act is consistent with the constitutive elements of the crime of intentional injury,and can not be exempted from its illegality by emergency avoidance and the victim’s promise.Consequently,the intentional transplant of an illegally sourced organ by a doctor constitutes a crime of intentional injury.