摘要
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 。
Human organ transplantation is a series of connected and joined actions consisted of donor's donation and medical establishment's removal and transplantation for therapeutic purposes In view of modern civil law, the author makes a thoroughly analysis on civil law theory basis Then the author holds that a living person possesses legal personality and so the right to deal with his interests in personality by himself, and that the dead body and human organs should be the object in property law and belong to the person before he died and the other persons after he died by succession, and so can be deal with inside the scope of limitation by law And the author thinks that the organ removal is helpful for therapeutic actions as well as the transplantation should be complied with medical services contracts, and that because of victim's informed consent under the principle of interest balance the transplantation actually be legally exempted from law responsibility
出处
《中国法学》
CSSCI
北大核心
2003年第6期57-65,共9页
China Legal Science
