论器官捐献法立法原则--兼论法律对私权利限制的证成

本文以高伟峰医生偷摘尸体眼球救治两病人, 遭死者家属起诉一案作引,提出了应在我国制定器官捐献法,并评述了器官捐献法的两原则 ,从个人权利来源,法律对个人权利限制的证成及我国当前实际情况等角度分析,指出我国的器官捐献法易采取自愿原则.     

论器官损献法立法原则：——兼论法律对私权利限制的证成

本文以高伟峰医生偷摘尸体眼球救治两病人，遭死者家属起诉一案作引，提出了应在我国制定器官捐献法，并评述了器官捐献法的两原则，从个人权利来源，法律对个人权利限制的证成及我国当前实际情况等角度分析，指出我国的器官捐献法易采取自愿原则。     

论尸体器官捐赠自愿性原则

尸体器官提取中的自愿原则不仅体现了个人的感情需要 ,更体现了传统尸体及其器官支配体制承担的巩固社会联系 ,维系共同道德的功能 ,不能为器官提取的非自愿方式代替。     

论尸体器官捐赠自愿性原则

尸体器官提取中的自愿原则不仅体现了个人的感情需要,更体现了传统尸体及其器官支配体制承担的巩固社会联系,维系共同道德的功能,不能为器官提取的非自愿方式代替.     

试论人体器官权与器官捐献激励原则(2)(中国政法大学2005届硕士学位论文)

第三章我国器官捐献匮乏的成因分析 一、国内外器官捐献立法回眸 在器官捐献立法方面,外国及我国地方的情况见表1.     

试论人体器官权与器官捐献激励原则(2)(中国政法大学2005届硕士学位论文)

第三章我国器官捐献匮乏的成因分析 一、国内外器官捐献立法回眸 在器官捐献立法方面,外国及我国地方的情况见表1.     

人体活体器官捐献的现实困境与法律应对

当前我国人体活体器官捐献法律制度尚不完善，突显出以下问题：活体器官捐献人范围过窄且缺乏适当补偿机制、器官交叉移植合法性仍未得到法律明确认可以及人体活体器官捐献管理机构主体不明等。基于活体器官捐献人自主意愿，为拓宽人体活体器官捐献渠道、保障受捐人生命健康权益，应当适度扩大活体器官捐献人范围，结合公平原则与道德风险防范理念，给予活体器官捐献人适当经济性或权益性补偿，同时明确赋予并合理设置中国人体器官捐献管理中心对活体器官捐献的管理职责。     

论公共利益的行政保护——法律原理与法律方法

公共利益的行政保护具有深刻的道德、理性和价值基础,是普遍权利的逻辑结果和必然产物,它是由政府的性质、目的和治理目标决定的,它遵循的两个基本原则是:公共利益优先原则和利益平衡原则.但公共利益对个人权利的限制是有条件的,也是有限度的.     

人格?还是财产?论人体器官的法律地位

人体器官是人格的载体,是可移植再用的特殊物。为了补偿器官权人因捐献行为受到的身体损害,给器官捐献者一定的补偿符合现代民法的基本精神和发展趋势,无损于国际公认的自愿、无偿捐献原则。     

论紧急状态下限权原则的建构思路与价值基础——以我国《突发事件应对法》为分析对象

在我国《突发事件应对法》中,究竟有没有必要设置一些限制权利的基本原则?如果有必要,应当如何建构它们?在这个过程中,人们又会遇到哪些困难?基于法律体系的内部融贯性,这部法律必须认真对待普通民众的基本权利,并且需要设置一种动态的限权原则。这些原则不仅可以有针对性地应对突发事件的自身特质,彰显我国宪法对待权利的基本态度,而且能够满足现代法治对权利与权力之间相互平衡的期许。     

Laypeople's ethical concerns about a New Israeli organ transplantation prioritization policy aimed to encourage organ donor registration among the public

A new policy recently enacted in Israel promises preferred status in receiving organs for transplantation to individuals who register to be organ donors and to their close family members. Proponents believe it will increase the supply of organs for transplantation from the deceased. Ethical issues were raised in government committees appointed to discuss the policy before its approval, but discussions among laypeople were not solicited. This study aimed to elicit laypeople's views about the policy by conducting thirteen group interviews and thirty-six individual interviews. Participants included religious and nonreligious people, immigrants, and Arabs. Some participants thought the law would contribute to fairness by prioritizing those willing to give, but others articulated ethical concerns that were not emphasized by scholars, in particular that the policy would add to the erosion of social solidarity, increase divisiveness, and enable people to abuse the system. Mistrust in the health care system emerged as a prominent reason for not registering as an organ donor. Implications about the importance of transparency in the organ transplantation system as a basis for an information campaign, social norms regarding organ donation, and the public's involvement in policy issues on organ donation are discussed.     

The shortage of transplantable organs: an analysis and a proposal

During the last decade there have been enormous advances in the transplantation of vital organs - in particular, the kidney, lung, heart, liver and pancreas. Unfortunately, efforts to provide the benefits of these operations to patients have been severely hindered by limitations in the supply of organs -limitations which, in the view of the author, are a consequence of regulation prohibiting the use of market incentives to increase the supply. We conclude that the law should be changed to allow the use of incentives to induce the donation of both present and future interests in cadaver organs.     

论人体器官移植的现代民法理论基础

器官移植是为医疗目的由器官供给人的捐赠行为、专门医疗机构器官摘取的协助行为和植入器官的治疗行为等构成的相互独立、相互联络的关联结合行为。作者从现代民法的角度 ,深入剖析了人体器官移植的理论基础 ,认为活人是具有法律人格的权利主体 ,故具有处置其人格利益的自己决定权 ;遗体和人体器官是物权法的客体 ,归属于生前的本人和继承法理下的其他人 ,在法律限制流通的范围内可由权利人进行处分 ;医方摘取器官行为只是医疗援助行为 ,器官植入行为可适用医疗服务合同法理 ;因存在利益衡量和公序良俗原则下的受害人知情同意 ,所以移植器官行为是阻却违法的行为     

Forced organ donation: the presumed consent to organ donation laws of the various states and the United States Constitution

The issues presented in this Comment pertain to whether there are substantive limits imposed by the Fourteenth Amendment upon the state legislatures which would defeat the recent, tentative steps of many states to pass laws authorizing presumed consent to organ donation. The final and perhaps least effective presumed consent law creates a presumption of consent to organ donation. The potential organ donor makes the choice whether to donate or not during his lifetime. This form of the presumed consent law would probably have the least impact on increasing the number of available donor organs. It permitted the coroner to harvest the eyes and corneas of deceased individuals if the coroner was unaware of objections from either the decedent or the family of the decedent. Presumed consent statutes should be found unconstitutional because they infringe upon a family's property interest in a deceased relative's corpse. However, due to the family's property interest in a relative's deceased body, as set forth in the next section, the result is that presumed consent statutes are unconstitutional. In order to find the presumed consent law unconstitutional, the Court would have to find that either: (a) the Fourteenth Amendment's liberty component included the family's right to determine what happens to a relative's body after death, or (b) that the property component included a vested state law property interest in the dead body.     

The Human Transplantation (Wales) Act 2013: an Act of Encouragement,not Enforcement

The Human Transplantation (Wales) Act became law in Wales in September 2013. The Act aims to increase deceased donor organ and tissue donation in Wales by introducing a ‘soft opt‐out’ system to replace the previous requirement of express ‘appropriate’ consent under the Human Tissue Act 2004. Adults dying in Wales (with certain exceptions) will be ‘deemed’ to consent to donation, unless evidence of their objection is produced, and a duty is imposed on Ministers to promote transplantation and inform the public through awareness campaigns about how to choose the deemed status or opt out. Although a welcome development, these campaigns may obscure the effects of deemed consent, especially in the context of generally rising UK donation rates. There may also be problems of legal interpretation and of integration with the ‘opt‐in’ laws in the rest of the UK. In the absence of any statutory duty to retrieve all lawfully donated organs, the apparently restricted influence of donor relatives is likely to remain effectively dominant.     

Public education and organ donation: untested assumptions and unexpected consequences

While the number of individuals able to benefit from transplantation increases with technological developments, donation rates remain insufficient to cater for demand. A universal response to the insufficient number of donor organs has been public education to increase knowledge about donation and transplantation, and to encourage individuals to register their wishes about donation. Although education appears to have increased knowledge and encouraged individuals to register their wishes, it has not increased the number of organs available for transplantation. In fact, there is some evidence that encouraging people to register their wishes may be detrimental to increasing net donation rates. The failure of education programs to increase organ donation rates may be due in part to a failure to recognise that attitudes to donation are influenced by complex socio-cultural and personal beliefs, and not simply by knowledge. Research aiming to increase the rate at which organs are procured for donation must recognise that some individuals do not support transplantation and have their own personal reasons for maintaining this position. Educational interventions should not assume that increasing knowledge or simply encouraging individuals to declare a decision about donation will increase consent to donation.     

论地方国家机关的法律解释权应当取消

在我国当前的法律解释体制中,除审判机关和检察机关之外的不少地方国家机关具有法律解释权(包括地方性法规、地方政府规章的解释权),导致了法制的混乱。这些机关行使法律解释权尽管有一定的合理性,但其弊端是显而易见的。从理论上说,地方的立法机关、行政机关、检察机关和审判机关都不应当行使法律解释权。因此,应当取消当前地方一切国家机关的法律解释权,保障法官在个案中的法律解释权。     

The willingness to give: the public and the supply of transplantable organs

We report the results of a representative random-sample telephone survey of the public's willingness to donate organs. Our goal was to identify differences within the public and target groups who might be receptive to educational efforts to increase donation. We distinguish differences in attitude and demographic characteristics in three groups: those committed to donation, those opposed, and those who might change their opinions with more specific information. While approval of donation is nearly universal, only about half of the public would donate a relative's organs when they do not know the relative's preference. Whites, higher-income individuals, and those with higher educational levels were more favorable. Those who might change their minds fall midway between those committed and those opposed, both demographically and by attitude. They include more nonwhites and more individuals with incomes less than $25,000 than members of the group committed to donation. Targeting public education messages to this group is likely to have the most success in reducing the gap between supply and demand for human organs.     

Vaccination and other altruistic medical treatments: should autonomy or communitarianism prevail?

The publication of a report into a case where an organ donor's constraints on the race of potential recipients raises questions about whether respect for autonomy or communitiarianism should prevail in altruistic medical procedures. This article briefly reviews how autonomy and communitarianism are balanced in cadaveric and live organ donation, bone marrow donation, gamete donation, blood donation and vaccination. It criticizes vaccination policy for ostensibly respecting patient autonomy yet in practice compromising that autonomy in various ways. Vaccination is properly viewed as an altruistic medical procedure because some vaccines are of more good to society than to the vaccinee, who runs associated health risks. The conclusion is that there is a spectrum of attitudes to the value of autonomy, depending principally upon the invasiveness of the procedure. In most cases the autonomy-communitarianism balance is satisfactory, but this is not so in respect of cadaveric organ donation and vaccination. The article proposes that cadaveric organ donation should be governed by the communitarian law of well-publicised presumed consent. It proposes two alternatives for vaccination: that vaccination should be compulsory or, preferably, that procedures be modified so that parents have real autonomy in their decisions whether to vaccinate their children.     

Ethical considerations underpinning the donation of live,non-regenerative organs

The recent donation of a kidney to one of Australia's most prominent citizens by a long-time friend and employee has brought to attention the problems of access facing patients who require renal transplantation as a life-saving measure. The lack of availability of cadaver organs, the improved techniques available to minimise tissue rejection and the potential to genetically engineer tissue-compatible individuals for future organ donation have generated an interest in the ethical and legal considerations that underlie live organ donation.