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Legal implications of the human organs and tissues trafficking crime: legal controversies about the legal protected interest

Grant number: 14/18647-3
Support type:Scholarships in Brazil - Scientific Initiation
Effective date (Start): November 01, 2014
Effective date (End): October 31, 2015
Field of knowledge:Applied Social Sciences - Law - Public Law
Principal researcher:Fernando Andrade Fernandes
Grantee:Rhasmye El Rafih
Home Institution: Faculdade de Ciências Humanas e Sociais (FCHS). Universidade Estadual Paulista (UNESP). Campus de Franca. Franca , SP, Brazil

Abstract

This scientific work has as its object of study the various legal implications of the organ trafficking crime. On this track, the sale of human organs is on parental rights, typified in the article 15 of Law n. 9.434/97. The aforementioned device provides imprisonment from three to eight years and fine of 200 to 360 day - fines for those who buys, sells, promotes, mediates, facilitates or receive any benefit from the transaction of organs or body parts. However , the discipline of organ trafficking remains insufficiently addressed by the Act above , why in the draft Penal Code , in its special part , in Title XVI " Crimes against Human Rights ," Chapter III " Trafficking in Persons " , art . 469 , § 2 , there was innovation , it is expected that the removal of organs or tissue type to have spent itself , no longer punished as personal injury . Current law discipline, merely the crime of human trafficking for sexual exploitation. Fore this, the commission Reform of the Penal Code also criminalized trafficking for purposes of subjecting the victim to forced labor and organ removal, both domestically and internationally. That said , this project aims to analyze the dogmatic issues of trafficking , whether as a facet of organized crime , whether as a bioethical controversy , or as an affront to the rights of personality , and , above all, the purpose of examining the actual well legal to be protected in the crime of trafficking / marketing consented organ . To do so, we aim to make an approach by reference also to comparative law, especially concerning the positioning of Spanish law (art. 156 bis and 177 bis, c , CP ). Finally, through a legislative analysis, doctrine and jurisprudence, and through the analytic- deductive method, and a critical- dialectical approach, will elucidate the question of the legal order to deduce a new parameter to be contemplated by Brazilian law.

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