The Legal System and the Necessity for Penal Sanctions of Living Organ Transplantation ─ The Comparison and Inspiration from German Law

• Main Authors: Nien-ChiehTsai, 蔡念倢
• Other Authors: Hsiao-Wen Wang
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/54283822488016624968

碩士 === 國立成功大學 === 法律學研究所 === 99 === Organ transplantation worldwide has been generally acknowledged as a highly effective treatment. Especially due to the shortage of cadaveric organ donation, living organ transplantation is taking on a more predominant role than ever. In order to establish the legal basis of organ transplantation, the legislators in Taiwan and Germany both have legislated Human Organ Transplant Act. However, although the evaluation of organ transplantation on criminal law and the legal effect of violating Human Organ Transplant Act are imperative issues, they are rarely mentioned and discussed. First of all, according to the scope of Organ Transplant Act, we not only define “living organ transplantation”, excluding autologous transplantation and domino transplantation, but also tell its differentia from cadaveric organ transplantation. In the whole organ transplantation, it can be divided into two parts, organ harvesting and organ implantation. According to the traditional three-staged theory of criminal law, these two parts are discussed with the criminal evaluation in order. Second, we research the Taiwanese and German conditions of organ harvesting and organ implantation in Organ Transplant Act, such as the donors’ qualifications and agreement, the recipients’ coverages, doctors’ duty of illustration, and so on. After analyzing and comparing the different regulations in Taiwan and in German, we shall regard the advantage of German law as our improvement target. Last but not least, according to the German law, when organ harvesting is against the Human Organ Transplant Act, criminal punishment is inflicted. On the other hand, the Human Organ Transplant Act in Taiwan adopts administrative penalty. Only when it relates to criminal law, criminal punishment is inflicted. However, when doctors violate the regulation of the scope of recipients as well as the qualification of doctors and hospitals and harvest organ, we can’t inflict the criminal punishment on them. Therefore, in view of the necessity for penalty and the insufficient regulation of the criminal law, we should legislate penal provisions in Human Organ Transplant Act.