Abstract
The technology of human organ transplantation when began in the 1960s, has now become the most effective treatment of organ failure patients. Even though the technology of human organ transplantation has been developing very rapidly both in China and Taiwan, there are many considerations from their legal systems, and many problems that need to be clarified and resolved, especially in the context of relatively low organ donation rates. In the past, the two sides tended to take the administrative measures to deal with social problems and legal issues caused by human organ donation and transplantation, even though the basic relationship of human organ donation and transplantation is the civil legal relationship. Unfortunately, scholars and practitioners both in Taiwan and China have less discussion on the above-mentioned civil issues, which may leave a bad influence on the protection of civil rights and interests. Based on the condition, this paper intends to rethink the related problems in the field of human organ donation and transplantation from the perspective of civil law, mainly related to the legal attributes and disposal rules of organs, contract analysis of organ donation and transplant behaviors, and the civil liabilities in the field of organ donation and transplantation. This article mainly uses the method of interpretation and comparison of law, and takes the existing theories and legal provisions both in Taiwan and China as materials. The main conclusions of this paper are as follows: First, the civil attribute of organ is the "material", which we can set up ownership on it, but its power and exercise should be subject to certain restrictions; Second, organ donation behavior is essentially a special gift contract, and organ transplant behavior can be bound by medical service contract; Third, organ donation and transplant behavior may produce a corresponding breach of contract and infringement.