중국 인체장기기증 자기결정권 규정에 대한 비판적 고찰 - 연성 법률가부장주의 관점에서 -

China’s current Regulations on the Donation and Transplantation of Human Organs articulate the principle of individual self-determination in organ donation, grounded in voluntariness and non-remuneration, and further operationalize this through detailed provisions governing both cadaveric and living organ donations. However, certain issues remain that cannot be resolved solely through normative interpretation. With respect to the subject of the right, restricting the exercise of self-determination to ‘citizens’ with full civil capacity conflicts with higher- level laws. Regarding the exercise of the right, problems also arise from inconsistent standards of recognition, the absence of provisions on the right of revocation of consent, and the lack of rules governing joint decision-making. The newly introduced principle of ‘the people first, life first’ reflects a soft paternalistic stance in law, under which the right of self-determination in organ donation should be substantively developed from a legislative perspective: both the donor’s age and their capacity to make an informed judgment on organ donation should be taken into account; even expressions of will made by persons lacking full capacity to exercise self-determination should, as far as possible, be considered and respected. Furthermore, the rules on the exercise of joint decision-making rights should be refined so as to safeguard the deceased’s personal interests while reducing conflicts among joint decision-makers.