The Study Of Human Organ Transplant In Civil Law

Human organ transplant, as a modern medical technology, has brought the hope of life for manyserious patients with a magical unprecedented strength, make them obtain the precious life and heath again.Medical progress need the help of law, especially in such a legal society. However, there are manycontroversial questions in the legal theory and medical practice. This need us to research further. The articlehope to have some reference for medical progress and legal perfection.In the process of human organ transplant, it is a very controversial question for organic nature and itsright. In general, human organ have three kinds, that is: the organ of existing in the body, organ whichseparated from the body and the corpse. The author holds that,the nature of the organ of existing in thebody should be the object of personal rights, its right should belong to the person; the nature of organwhich separated from the body and the corpse should be property, their right are not the same in differentcondition, this need us to analysis according to the decision of the person.In the whole medical process of organ transplant, the operation of human organ transplant could becarried on only each party do their own civil obligation. This article analyzes the obligation among thedonors, the acceptors and the medical institutions. Especially the obligation of medical institution, becausemedical institution play a big role in the medical process. The life and the health of the donors and theacceptors depend on largely a series of medical conduct of medical institutions.. At the same time, theauthor analyzes the requirement of the donors and the acceptors, holds that the teenagers can also becomethe donor in a certain condition, the non-relatives transplant can also be done in some extent.Of course, if the subjects violate their own civil obligation in the process, they should undertake civilliability. Because there are three party, the civil liability of human organ transplant has its own characterwhich is different from the general civil liability. Meanwhile for the nature of liability, the scholars have ahot dispute. The author analyzes from the character, the nature and the constitutive elements of civilliability. Holds that each party can probably be the subject of liability, and the nature of liability should becoincidence of tort liability and breach liability. Then studies and analyzes from their constitutive element:subjective fault, illegal or breach conduct, damage result,causality. Hope to solve better the medical dispute in the practice.At present, the law is mainly human organ transplant ordinance on march21,2007and the provisionon regulating living organ transplant on December28,2009. The author thinks that there are some shortage,so she sets up three suggestions of improving the legislation: the death standard should adopt brain deathstandard; compensation should be offered to the donors, the cancellation right of the donors should berestricted properly. The author argues that, brain death standard is more scientific than traditional deathstandard, it is good for raising surgical quality. and is fit with international general method; we should notadopt free absolutely, it is not good for solving the question that the donors is deficient seriously, so weshould compensate the donor properly; for the cancellation right of the donors, although most national lawregulate that the cancellation is optional, but the author thinks we should restricted the right in view of thefairness. Of course, because the donor can not obtain any reward, even if they exercise the cancellation,weshould not investigate their responsibility according to indemnity. Instead, we should handle it withcompensation.