부산대학교 도서관

Article 39 of the amendment to the criminal law of the people's Republic of China (11) finally deleted the “violation of the relevant provisions of the state” in the draft, which means that the act of gene editing (cloning) embryo implantation related to human body itself is illegal, and there is no premise to be allowed. Gene editing (cloning) embryo implantation experiments related to human also belongs to the punishment scope of this crime. There is no such expression as “violating the relevant provisions of the state” in the accusations of the crime, although it can not be inferred that it is illegal for the judicial interpretation to summarize the crime as “the crime of illegal gene editing and embryo cloning”; However, we can not deduce the legality of such experiments according to the “illegal” elements added in the charges. The legislation of this crime is not only a kind of responsive legislation, but also a kind of preventive legislation. In the final analysis, it is an emergency legislation that must be adopted to prevent the “vacuum period” of legal regulation. Although it is conducive to ensuring the safety of human genetics and maintaining the management order of the research and application of gene editing technology, it violates the freedom of academic research in the constitution, and may also lose the opportunity to develop cutting-edge technologies such as gene editing, treat genetic diseases, develop liberal eugenics and expand basic rights. Therefore, it is an important theoretical issue as well as an urgent practical issue whether we can find a way of interpretation with both legitimacy and rationality to decriminalize such experiments selectively in criminal justice practice. The “serious circumstances” in the description of the crime, as the “integral standard evaluation element” of the crime constitution, can open up a path of decriminalization for such experiments. On the one hand, the situation of “not approved by the competent authority” can be included in the scope of “serious circumstances” by means of timely judicial interpretation, so as to decriminalize some approved experiments. On the other hand, “serious circumstances” is actually forcing the administrative legislation of gene editing (cloning) technology to legislate as soon as possible. In the future, according to the development of gene editing technology and ethics, we can gradually expand the scope of administrative license for such experiments, and find the path of decriminalization from the perspective of the unity of legal order and the relativity of illegal judgment.