A substantive interpretation of the crime of illegal collection of human genetic resources:reflection on the Chinese model of biosecurity governance
For biosecurity governance within the framework of the Chinese modernization perspective,there is a need to guard against excessive reliance on criminal penalties and to explore a governance model that involves"shared governance among civil action,administration and law enforcement,and coordinated application of soft and hard laws."The new productive potential of human genetic research in China,as well as the pursuit of rationality in criminal law,calls for a substantive interpretation of the crime of illegal collection of human genetic resources,with behaviors lacking the necessity for criminal punishment subject to pre-legal evaluation.The protective interests of this crime lie in"public health"and the"special nature of human genetic resources,"which can serve as the substantive interpretation basis for the open constitutive elements.The potential invasion of public health under legitimate use purposes determines the impossibility of constraining the extension of this crime through the limitation of"purpose,"hence the need to resort to an overall assessment criterion of"seriousness of circumstances"for substantive interpretation.In determining the"seriousness of circumstances"of this crime,a two-tier review approach of"objective unlawfulness → subjective liability"should be followed,with the exclusion of abstract danger facts beyond the reference factors.If the conduct,while contrary to the pre-legal standards,does not pose a specific risk to public health nor violate the exclusive nature of human genetic resources,it should be exempted from criminal liability on the grounds of not constituting"seriousness of circumstances."Unlawful collection conduct that is solely based on informed consent and lacks any other objective illegal circumstances should not qualify as"serious"and should therefore be exempted from criminal liability.As for secondary collection of remaining embryo samples,if there is no risk of violation to the exclusivity of human genetic resources,it may be considered as not constituting"seriousness of circumstances"and thus exempted from criminal liability.
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