Song Gongde, a doctor of law at the National School of Administration, pointed out that although the Constitution stipulates that "citizens have the right to get material help from the state and society in case of old age, illness or loss of working ability", it is somewhat unrealistic to do so in our real life. As the saying goes, "there is no filial son before the bed for a long time" illustrates this point. Some experts also believe that this clause in the Constitution only shows that the state has the responsibility to help citizens extend their lives, but this does not mean that the state can force citizens to extend their lives, nor does it mean that the state cannot help citizens end their lives.
Second, the basis of legalization of euthanasia
Whether from the ethical and humanitarian principles, or from the quality of life, life dignity; Euthanasia has its legitimacy in terms of individual self-determination and social effects.
1. Euthanasia conforms to ethical and humanitarian principles.
In China, 5,000 years of civilization has created people's deep-rooted ethics and traditional ethics, medical ethics and humanitarianism. But the economy is the basis for determining the superstructure. With the development of society and the progress of science, people's moral concepts will also change. The concept of "life is worse than death" has a long history in China, but now more people think that the "gentle" process of ending painful death is more in line with modern people's moral norms and more humane than prolonging the painful process of patients by artificial means. In addition, people generally agree that patients have the right to choose death, which is the progress of civilization. People regard euthanasia as a sign that patients have no choice but to end their pain voluntarily and face death calmly. This is a brave act. As a doctor, euthanasia is only to help patients realize their dying choices.
2. Euthanasia accords with people's pursuit of quality of life.
As a natural law, death is inevitable. In this regard, mankind has been pursuing a kind of "good beginning and good end" and "safe death". Since death is inevitable, why not choose a more valuable, dignified and peaceful way of death at an appropriate time? The value of life lies in the contribution to society, and this value is often reflected in the quality of life. When a person's life doesn't even have quality, how to ensure its value? In the face of those terminally ill patients who are in great pain, how to maintain their death dignity and how to give them a peace before they die? Euthanasia is undoubtedly a rational choice.
Pythagoras, an ancient Greek philosopher, said, "Life is sacred, so we can't end the lives of ourselves and others." For a long time, people have always thought that life is sacred, supreme and inviolable. Euthanasia is actually another reflection on "infringement" (infringement of others' right to life). Opponents of euthanasia believe that euthanasia deprives people of their right to life, but from another point of view, if a person is suffering from a terminal illness, if a person is living worse than death because of the hardships of life, and if a person cannot get rid of it because of physical and mental fatigue, they choose to commit suicide and put it into practice. So, how is the law evaluated? Legally speaking, life belongs entirely to individuals, and the punishment for this absolute right is based on the control of individuals' absolute will (including suicide). As long as this behavior does not affect the interests of society and the public, rational laws should not intervene. Euthanasia is just a kind of relief. If a person has the right to live, then he should not lose the right to choose death!
3. Too much meaningless treatment is a waste of social resources, especially medical resources.
Although modern medicine is more and more developed, no matter how much money is invested to prolong death and reduce the risk of pain and disability, there are still countless incurable patients who actually cannot avoid death, but suffer extremely painful and unbearable medical intervention to prolong the death process. As we all know, cancer patients suffer not only physical pain, but also mental stress. As healthy people, we can't feel the same. At present, most terminally ill patients in China are treated with imported drugs, which can only temporarily eliminate some symptoms of patients, but can't put an end to their regeneration and metastasis, which undoubtedly leads to a kind of "reuse of medical resources and waste of social resources". On this long road of seeking medical treatment, not only patients have to suffer from diseases, but also patients' families can't accept "euthanasia" because of morality and public opinion, and still hope in the hospital. Some family members even hide their illness from the patients, but they bear excessive economic and psychological burdens. When these tortured people ask for euthanasia, can we bear to refuse?
Yes, life is really precious. But life is healthy, unhealthy, treatable and incurable. On the second day of Marx's death, Engels wrote in a letter: "Medical technology may ensure that he can barely live for a few years ... For him, living like this is a thousand times more painful than dying peacefully ... This is something that Marx can never bear." Obviously, survival is not unconditionally more valuable than death. Many living wills make it clear that they would rather die with dignity than live in pain without dignity. I feel that when the patient is really hopeless and facing extreme pain, respecting the patient's wishes is the embodiment of human nature.
Thirdly, the feasibility of legalization of euthanasia.
As a tool to adjust society, law should meet the requirements of society. There is a growing demand for legalization of euthanasia in society. Euthanasia, as a human right, is of universal significance in the world, and its legislative work is also imperative. With the passage of time, euthanasia has become a strong manifestation of new social problems and social needs in China. In China, it is generally believed that it is not only feasible in theory, but also of positive practical significance to implement euthanasia law, improve the legal system for protecting life and strengthen the protection of life.
1, euthanasia does not constitute a crime.
First of all, China's current criminal law does not explicitly stipulate that euthanasia or similar acts are crimes, so it is not used as a legal basis for crime handling. Secondly, according to China's criminal law theory, any kind of crime must have three characteristics: social harm, criminal illegality and criminal punishment. These three characteristics have a causal relationship in the sense of criminal law. Social harmfulness is the most basic of the three characteristics and the most essential characteristic of crime, so an act without social harmfulness certainly does not have the other two characteristics of crime. I think euthanasia is an act of "eliminating social harm". Because if euthanasia is a crime, it is based on its violation of people's right to life. But I have pointed out in the previous article that euthanasia is not the disposal of life, but the disposal of the end of life, which is an artificial regulation of the patient's death mode according to the patient's commitment. It is not an infringement of the right to life, on the contrary, it is an optimal disposal based on respecting the patient's right to life. Adopting this optimal treatment method can not only alleviate the suffering of terminally ill patients and safeguard their personal dignity, but also be beneficial to society. Based on this, euthanasia is not harmful to society, so it is certainly not criminal and should be punished by criminal law. Therefore, euthanasia is not a crime. Finally, according to the specific constituent elements of the crime of intentional homicide, although euthanasia-especially euthanasia carried out by behavior-is somewhat similar to the objective aspect of the crime of intentional homicide, it is essentially two different behaviors and cannot be confused. First, the two objects are different. The object of intentional homicide is people's right to life. Even the act of helping suicide out of sympathy and other motives violates the right to life of others. Because the victim does not necessarily die (not in the ultimate sense), the actor can take persuasion or other measures to avoid the occurrence of death, but instead of taking measures to avoid it, the actor actively promotes it, so euthanasia only obeys this law and artificially optimizes the way to end the patient's life. Therefore, euthanasia does not violate people's right to life; Second, subjectively different. Intentional homicide, whether out of hostility or other motives, has the direct purpose of illegally depriving others of their lives, and the perpetrator is subjectively guilty. However, the executors of euthanasia often take the initiative to euthanize terminally ill patients under strict conditions and procedures out of sympathy and pity, and their direct purpose is only to alleviate the unbearable pain of terminally ill patients, so they are subjectively innocent. Therefore, from the perspective of crime constitution, euthanasia is not an act.
To sum up, I think euthanasia does not constitute the crime of intentional homicide, nor should it be treated as a crime in any other name. Therefore, in addition to correcting its name in criminal law theory, judicial organs should also stop treating it as a crime in practice to avoid wrongly making the parties bear criminal responsibility.
2. The legalization of euthanasia conforms to the legislative principles of our country.
First of all, euthanasia legislation conforms to the democratic principle of legislation. Article 5 of the Legislative Law stipulates: "Legislation should reflect the will of the people, promote socialist democracy and ensure people's participation in legislative activities through various channels". At present, the legalization of euthanasia is deeply rooted in the hearts of the people. In the last article, the data show that the legalization of euthanasia is the will of the people and the will of the people. Only by legislating euthanasia can we better embody socialist democracy and let the people participate in legislation.
Secondly, euthanasia legislation conforms to the scientific principle of legislation, and the scientific nature of legislation is reflected in the concrete analysis of specific issues and local legislation according to the actual situation in various places. The legalization of euthanasia involves many aspects and is a very complicated issue. The author thinks that euthanasia can be legislated in the form of local laws and regulations in specific areas first.
Finally, the legalization of euthanasia reflects the balance of various interests. In some areas, euthanasia legislation first reflects the balance between overall interests and local interests, long-term interests and short-term interests. At present, China is in the primary stage of socialism, and there are not many economically, politically and culturally developed areas with the conditions for legalization of euthanasia. In these places, the legalization of euthanasia first solved the "appeal" of local interests; Moreover, the local legislation of euthanasia is to realize short-term interests, while long-term interests are legalized nationwide. To sum up, it is feasible to legalize euthanasia whether in foreign countries or in China, whether through cause analysis or legal analysis. However, nothing can be done overnight. But we should bring euthanasia into the legal system with a positive attitude.
Fourthly, establishing a perfect euthanasia system is the premise of euthanasia.
Although the euthanasia system is a decent relief for those who are incurable and in great pain, it is an act of destroying human life after all. Therefore, in order to prevent the euthanasia system from being used or abused, it is a prerequisite to formulate a strict and perfect euthanasia system.
(1) Applicable object of euthanasia: It is a complex issue to confirm the applicable scope of euthanasia, and there are certain differences among countries in the world. For example, euthanasia in a vegetative state, newborns with serious defects, etc., all have different views. Therefore, there are some different views on the choice of euthanasia objects. Because China's euthanasia system is still in the exploratory stage, there are great social and cultural differences in different places, and the psychological level of accepting euthanasia is also different, so the choice of euthanasia objects in China should be limited to those with poor quality of life and impossible to change at this stage, including the following categories:
1. Patients with serious diseases, in extreme pain and no possibility of cure: (1), patients with advanced malignant tumor; (2) patients with advanced AIDS; (3), serious organ failure and irreversible, unable to transplant; (4) a vegetative person who has lost brain function due to various diseases or disabilities; (5) newborns with serious defects; (6), suffering from serious mental illness, I have no normal feeling, perception, cognition, etc. And long-term treatment can not return to normal; Survival has become a burden for patients with the above diseases, and euthanasia is a relief for them.
2. Congenital mental retardation, no independent living ability, and no possibility of returning to normal.
3. Alzheimer's patients, seriously ill patients and severely disabled people.
(2) Applicable conditions of euthanasia:
According to different embodiments, euthanasia can be divided into active euthanasia and passive euthanasia. Active euthanasia should meet the following conditions: 1, terminally ill and dying; 2, extremely painful; 3. Third, in legal occasions, voluntary euthanasia can be clearly and accurately expressed for more than three times without going back on our word. These conditions are organically unified, interdependent and indispensable. However, for vegetative patients with brain dysfunction, highly senile dementia patients without normal sensory perception and cognitive ability, "fools" with congenital mental retardation and independent living ability, and severely deformed children or newborns with serious congenital diseases, they either have no sensory ability or can't express their true meaning correctly, so they can only adopt passive euthanasia, which should meet the following conditions: 1, individuals must lose their cognitive ability to the world and there is no possibility of recovery; 2, must be applied by their immediate family members. Because for people who passively perform euthanasia, the main respect is not them, but the protection of the interests of their families.
(3) Program design of euthanasia:
The procedure of euthanasia should generally include three aspects: application, examination and execution. In principle, the application procedures must be put forward by the patient himself or his immediate family members. The application method can be written or oral. Patients who are unable to express their wishes can be raised by relatives and friends, but relevant organizations must comprehensively consider the wishes of relatives and friends. Review procedures should include medical review and judicial review. Medical review is the primary procedure, and judicial review will be conducted after confirmation. The organizer of the physical examination can be a special committee established by the hospital or a special institution designated by the judicial organ, which is responsible for checking whether it is an incurable disease and whether the patient is suffering unbearable pain. Then submit the relevant review results to the judicial organs. Judicial review is mainly to approve the application conditions and examine the intention of euthanasia, especially if it is not put forward by myself. The judicial organ is responsible for the execution of the procedure, and the hospital designated by it is responsible for the execution. The judicial organ must send someone to the scene to supervise, and euthanasia should be carried out by at least two medical personnel. When to execute can be at the request of patients and their families. After the executive physician receives the relevant certification materials and approval materials, it shall be executed after being signed by the patient or his family.
(4) Early warning mechanism of euthanasia: In order to prevent the euthanasia system from being used or abused, necessary early warning mechanism should be established.
1. filing system: for any patient or family member who applies for euthanasia, all materials must be provided to the relevant judicial organs, which will file the case after implementation. The filing period of this file is not less than 20 years.
2. Fixed-point system: hospitals designated by judicial organs are responsible for euthanasia, and judicial organs are responsible for its supervision. The fixed-point conditions shall be formulated by the judicial organs. Judicial organs have the right to revoke the qualifications of hospitals that cannot regulate euthanasia.
3. Expert database system: personnel who can carry out euthanasia services should be medical experts, and judicial organs should hire and establish an expert database. When euthanasia is implemented, experts should be randomly selected from the expert database, and experts from the same hospital should be avoided.
4. Disciplinary system: Once the euthanasia system is found to be used to commit illegal acts, it should be severely punished, and it can be convicted of intentional homicide to prevent the euthanasia system from being used as a tool.
On the surface, euthanasia system conforms to the constitutive requirements of intentional homicide, but in essence, euthanasia does not have the considerable social harm required to constitute a crime, and its fundamental purpose is to alleviate the unbearable pain of patients before death or the heavy burden of their families; The legalization of euthanasia system is a renewal of ideas and a new understanding of life and death. The legalization of euthanasia system will become the necessity of historical development and the requirement of modern criminal law civilization.