Understanding And Application Of The Crime Of Illegal Collection And Smuggling Of Human Genetic Resources

In recent years,the cases of endangering human genetic resources are increasing gradually,which poses a great threat to the biosecurity of Our country.After years of development,from normative documents to administrative regulations and then to criminal legislation,China has gradually formed a relatively complete legal regulation system in the behavior of endangering human genetic resources.However,there are still problems whether criminal law should intervene and to what extent.The settlement of these disputes should be traced back to the positive and negative views of criminal law,as well as the discussion on what regulation mode to adopt.The crime of illegal collection of human genetic resources and smuggling of human genetic resources materials is added in Article 38 of amendment(11)of Criminal Law,which solves the problem of criminalization of behaviors endangering human genetic resources from the legislative level.However,there are still many disputes on how to accurately understand the scope of punishment and correctly apply the crime.The fuzziness of human dignity and the necessity and balance of human genetic resource information self-determination not conforming to the principle of proportionality are not suitable for the protection of this crime.The legal interests of this crime should be the superpersonal legal interests,that is,the state management system of human genetic resources and public health and life safety.The administrative licensing of human genetic resources should be controlled,and the crime is neither identity crime nor unit crime,so only those directly responsible can be investigated for criminal responsibility.The collection of human genetic resources should comply with the relevant laws and regulations on the protection of human genetic resources and personal information.The crime only regulates the output behavior,but does not prohibit the input behavior.Illegal collection is determined by registration,informed consent and quantity and type of human genetic resources;The type and quantity of human genetic resources exported and whether it poses a threat to the life and health of the public shall be used to determine whether it constitutes smuggling of human genetic resources materials.In this crime,"serious circumstances" and "particularly serious circumstances" belong to the elements of illegal constitution,and exclude subjective elements and criminal prevention circumstances,which is in line with the possibility of national prediction and protection of people’s freedom of behavior,and is conducive to the protection of the development of biotechnology.The crime of smuggling human genetic resource material should be determined by the accomplished arrival theory,which is established when the human genetic resource material is transported to the destination where the human genetic resource material is intended to be delivered to others.When collecting,transporting,mailing and carrying at the same time involves the choice of charges and how to punish the problem,this crime does not exclude the combined punishment of several crimes,and identifying the two crimes separately will not cause repeated evaluation.Those who carry out the same act against human genetic resources and human genetic resources materials shall be punished for several crimes simultaneously.