乌克兰欧洲一体化背景下非法贩运人体解剖材料的刑事责任改革

Serhii Grynchak, A. Grynchak
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引用次数: 0

摘要

移植旅游是社会全球化的一个负面后果。人体器官贩运已蔓延到所有国家,并威胁到它们的安全。这一国际问题需要各国及其立法机构和国际组织作出反应。本文的目的是全面研究和系统化确定人体解剖材料流通法律制度的国际法和国家立法规范,以及确定乌克兰移植领域刑事法律保护方面的缺陷,并寻求在我国欧洲一体化背景下改善国内刑事立法的方法。为了实现这一目标,使用了各种研究方法。特别是运用辨证认识的方法,分析了我国现行立法和相关小说中刑事犯罪的构成要件和特征。由于使用了历史方法,已经制定了一些禁止人体器官贸易的国际法律行为。教条式的方法使揭示规范人体解剖材料流通的法律规范的实际内容成为可能。在研究具有普遍性、区域性和国家性的规范性法律行为时,采用了系统结构方法。采用比较法的方法,对乌克兰移植领域的国际法规范和国家立法进行比较。本文证明,致力于打击人体解剖材料非法流通的最重要的国际法律标准是《欧洲委员会反对器官贩运公约》,该公约规定了必须由参与国在其国家立法中实施的刑法禁令。所有传统的禁令被合并为四个相关的组,并与乌克兰刑法规定的刑事犯罪进行比较。还研究了刑法草案中规定对非法移植、贩运人体器官和其他非法流通人体解剖材料的责任的部分。对移植领域的法律制度进行全面分析后,得出结论认为有必要在乌克兰融入欧洲的过程中批准《欧洲委员会禁止贩运人体器官公约》。研究还确定,移植领域的一些传统禁令同时也是现行《刑法》规定的贪污罪的类型。这表明进一步需要详细分析这些规范,确定其特点、相互关系和与乌克兰立法有关规定的相互关系。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Reforming Criminal Responsibility for Illegal Trafficking in Human Anatomical Materials in the Context of the European Integration of Ukraine
Transplant tourism is a negative consequence of the globalization of society. Trafficking in human organs has reached all countries and threatens their security. This international problem requires a response from states, their legislative institutions and international organizations. The purpose of this article is a comprehensive study and systematization of the norms of international law and national legislation, which determine the legal regime of the circulation of human anatomical materials, as well as the identification of shortcomings in the criminal-legal protection of the field of transplantology in Ukraine and the search for ways to improve domestic criminal legislation in the context of the European integration of our country. Various research methods were used to achieve this goal. In particular, the elements and features of the composition of criminal offenses of the current legislation and the relevant novels were analysed using the dialectical method of cognition. Thanks to the use of the historical method, a number of international legal acts have been established that prohibit the trade in human organs. The dogmatic method made it possible to reveal the actual content of legal norms that regulate the circulation of human anatomical materials. The system-structural method was used during the study of normative legal acts of a universal, regional and national nature. Using the comparative legal method, norms of international law and national legislation of Ukraine in the field of transplantology were compared. The paper proves that the most important international legal standard dedicated to the fight against the illegal circulation of human anatomical materials is the Council of Europe Convention against Trafficking in Organs, which provides for criminal law prohibitions that must be implemented by the participating states in their national legislation. All conventional prohibitions are combined into four related groups and compared with criminal offenses provided for by the Criminal Code of Ukraine. Novels of the draft criminal law, which provide for responsibility for illegal transplantation, trafficking in human organs and other illegal circulation of human anatomical materials, were also studied. A comprehensive analysis of the legal regime in the field of transplantology gave grounds for the conclusion of the need to ratify the Council of Europe Convention against trafficking in human organs on the way to the European integration of Ukraine. The research also established that some conventional prohibitions in the field of transplantology are at the same time types of corruption offenses, which are provided for in the current Criminal Code. This indicates the further need for a detailed analysis of such norms, establishing their features, interrelationship and correlation with the relevant provisions of the legislation of Ukraine.
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