Main purposes of this study is as follows. Recently, there are much controversies over the nature and legal status of human biological materials. Considering there are still much uncertainties surrounding human biological materials, this study clarifies the concept of and classifies them. Then, it deals with the nature and legal status of those materials and lays foundation for establishing criminal regulations on use of those materials. Second, it analyzes actual status of use of human biological materials and biobanks and examines not only related laws but regulations so that appropriate and consistent criminal justice system could be established in Korea. Third, to present a point of view appropriate to the reality of Korean laws and propose proper policy alternatives to regulate them, this study compares legislations and regulation systems on human biological materials in major advanced countries in this field.
In fact, human biological materials are defined in article 2 of Bioethics and Safety Act of Korea, so far they are still strange to many except a few of experts. Currently, discussions on human biological materials are limited to the legal status of them in the criminal law because the criminal law provides only traditional concepts of human body. That may be the reason why other special acts provide use of human biological materials in detail rather than the criminal law. When examining those provisions on human biological materials, practically, it is hard to understand them in the frame of traditional concept of crimes. It is not clear whether human biological materials could be the object of theft or physical injuries. Contrast to the reality in the law field, advancements in medical science call for discussion on how we reflect those changes in the defined meaning of body in the criminal law and understand the benefit and protection of laws of physical injuries and assault. In addition, like other science technologies, it is difficult to regulate human biological materials solely by the regulatory approach of the criminal law’s own. Use of human biological materials involves not only legal issues but other complicated ones for example, protection of the privacy and personal information, possession and patent, commercial use and division of economic benefits created by them, ban on social discrimination, use of biological matters as source of welfare and etc. For theses reasons, use of human biological materials should be regulated by disciplines of soft law and hard law such the civil law, the administrative law and the criminal law all at the same time. At the same time, the function and role of the criminal law should considered in relation with other laws and norms. Under the current conditions, it might be practical to promote coherence between criminal laws regulating use of human biological materials and biobanks and realign them systematically in the short term. Furthermore, it would be possible to introduce basic principles of regulating use of biobanks in the criminal law and legislate general provisions governing abuse and misuse of human biological materials.