刑法中死亡判定标准的问题、学说及其选择 ——基于生命法益考量的初步分析

While cardiac death is usually accepted as the criterion of death in Chinese judicial practice, the criminal legislation in China does not specifically definite criteria of death in present. As medical theory progresses, criteria of brain death has upheld in lines of medical and law. It can exert a significant impact on both the evaluation that if feason’s behavior infringe legal interests in human life of the victim and the verdict of criminal law for the handling of relationship between criteria of brain death and cardiac death and the adoption of criteria for death. There are monistic theory, dualistic theory and modified monistic theory in law community, but all of them is defective in theory at different level. In consideration of the purpose of protecting legal interests in human life, the equivalent unification, a theory that deemed cardiac death as well as brain death to criteria of death, may become a suitable criteria of death in criminal law, which have a superiority compared with the three theories mentioned above, and may contribute to avoid the conflicts in judicial practice and legal interpretation.