CAJ | 학술논문

器官移植、基因治疗和人工生殖（人工辅助生育技术）是21世纪人类最激动人心的研究成果，必将极大地造福人类社会。器官移植最核心的问题在于脑死亡的标准以及供体受体的选择所带来的法律问题，我国还没有完整的器官移植专门立法，在制定规则的时候考虑到伦理、道德等多方面的因素。基因治疗的法律规制一直都是薄弱环节，包含很多不安全的因素，刑法应当作为一种最后手段介入调控。人工生殖作为现代医学治疗不孕的重手段，对传统自然生殖方式有重补救作用。人工生殖在对传统伦理道德观念形成冲击的同时，也对现有法律制度提出挑战。对以上问题，我们既防止过度商业化，也注意科学研究中的规范。
기관이식、기인치료화인공생식（인공보조생육기술）시21세기인류최격동인심적연구성과，필장겁대지조복인류사회。기관이식최핵심적문제재우뇌사망적표준이급공체수체적선택소대래적법률문제，아국환몰유완정적기관이식전문입법，재제정규칙적시후고필도윤리、도덕등다방면적인소。기인치료적법률규제일직도시박약배절，포함흔다불안전적인소，형법응당작위일충최후수단개입조공。인공생식작위현대의학치료불잉적중수단，대전통자연생식방식유중보구작용。인공생식재대전통윤리도덕관념형성충격적동시，야대현유법률제도제출도전。대이상문제，아문기방지과도상업화，야주의과학연구중적규범。
Organ transplantation, artificial reproduction and gene therapy are the most exciting research results in the 21th Century, which will certainly greatly benefit the human society. This article discusses some important issues from the civil law and criminal law perspectives. The author puts forward the legislation proposition based on the shortcomings of our present legislation and the reference of the legislation experiences of foreign countries, hoping to fill the research gaps in biomedical law. The first part discusses the relative issues of organ transplantation. Human organ transplantation was a major breakthrough in the field of medicine in the 20th Century. It resolved the questions which drug and other traditional methods of medical treatment cannot achieve, opened up broad prospects for the treatment of certain diseases and made the limited health resources more efficient. It is one of the highest achievements of the modern biomedical science. Coming with it are the crimes which include illegal trade in human organs, illegal removal of human organs, cross-border trade, smuggling and other acts of human organs. The article starts from the concept and judgment standard of brain death, which is the legitimacy of organ transplantation. Then the author analyzes the legal issues in different steps from the selection of donator and receptor, informed consent, the use of fetus and prisoners＇ body organs. At last it focuses on the different regulations for different crimes in other countries, and gives advices to the legislation in our country. The second part discusses the crimes in genetic therapy. Genetic therapy is a new medical treatment that involves many risks and remains to be improved. Keen attention there{ore must be paid to moral and legal issues in biology and medicine. Criminal law, however, can be applied to some perceived culpable behaviors in practicing genetic therapy with great caution only as a last resort, lest the development of sciences should be impeded by improper interpretation of law. The last part discusses artificial reproduction. As an important method of curing infertility in modern times, artificial reproduction is an important remedy for traditional and natural reproduction. While it challenges traditional ethics, artificial reproduction also puts forward challenges to the existing legal systems. Some key points such as the legal status of zygote, children＇s legal issues of the artificial insemination by donor, the reproductive rights of artificial insemination by donor are analyzed emphatically in details.