A Study on the Legal Status of Human Body Parts -Focus on the Property Use

• Main Authors: Ching-Wen Chang, 張瀞文
• Other Authors: 陳忠五
• Format: Others
• Language: zh-TW
• Published: 2017
• Online Access: http://ndltd.ncl.edu.tw/handle/v9xvb6

碩士 === 國立臺灣大學 === 法律學研究所 === 105 === In this essay, “human body parts” means “any material separated from human body, including human cells, tissues, organs or body fluid that contains human cells”. Nowadays, ‘’human body parts’’ is quiet valuable, and Utilized in a variety of fields, especially the fields of transplantation and biological technology. However, the legal issues about ‘’human body parts’’ re quite few. Take the most basic question for example. Ｗhether it is a property which can be regarded as an Object of rights? If the answer is positive, then, the following question is how to define its holder? Besides, whether it can also be an object of privacy? Those Questions above are all relevant to the statutes we should assert. Moreover, after confirming ‘’human body parts’’ should be protected by the property right and privacy, whether its property is consequently used has to be limited by its privacy character, public order and morals. From the perspective of the legal positions, the author assured that ‘’human body parts’’ is an object of rights. Then, the author concluded that human body parts is in line with the definition of things according to the comparative law and professional essays, Besides, because of the tight relationship between the human body parts and its holder, the author claimed that the protection from privacy should be also emphasized. Since this essay focuses mainly on the issue about Property use, we focus on the legality of the property use which is made under the holder’s free will from Chapter 4. In this chapter, we assumed the public orders and morals-as the limitation of the property use of’’ human body parts’’. After referencing the comments of public policy and morals by the professors from Taiwan and Japan, the author brined up some novel ideas about this concept, and categorized it as “public policy of human parts”. Furthermore, posed the standard of judgment, which included “maintain of human dignity”, “protection of disadvantaged minority”, “security of health and safety”, and “promotion of scientific research and economic development”. In the end of the chapter, the author tried to manipulate this standard to examine the legality of the alienability and consideration in the transfer of human body parts, then, concluded that the consideration in a portion of human body parts’ transaction is Possible. After we confirm the transactions of ‘’human body Parts’’ is legitimate. In Chapter 5, we devoted to building up an appropriate system to distribute the consideration, and emphasize that the public authority is indispensable for this system, also hold that it is necessary to establish a benefit-sharing system in the commercial research to balance the allocation of benefit. We expect this essay may clarify the legal status of human body parts to provide sufficient protection, also to clarify the legal relationship between the parties. Additionally, by means of the concept of public policy, the author also reviewed the rationality of the opinion which exists in the current regulations that forbid any consideration in the transaction of human body parts. By doing so, the distributive justice in every individual case could be achieved on the premise that there is no violation of public policy.