Beijing Law Review, 2012, 3, 109-111 Published Online September 2012 ( 109
On Human Experimentation: A Perspective of China’s
Criminal Law*
Chang-Qiu Liu
Law Institute, Shanghai Academy of Social Sciences, Shanghai, China.
Received June 5th, 2012; revised July 8th, 2012; accepted July 20th, 2012
Human experimentation is important to the development of life science. There are so many problems brought about by
human experimentation, which should be paid more attention to by law in order to protect the right of the subject. In-
ternational as well as domestic laws are enacted in order to beat the illegitimate human experiment, while criminal
countermeasures should be taken to redeem the failure of common legal measures, especially for China.
Keywords: Human Experimentation; Crime; Criminal Law
1. Introduction
Human experimentation, also called human experiment,
is an experimentation done on human body through sci-
entific methods to attain certain anticipated goals. Hu-
man experimentation is indispensable to the progress of
life science. Just as one scholar points out, “Research on
human subjects is the only way in which we can satis-
factorily establish the effectiveness and safety of medical
treatment [1, p. 448].” Although we can not say life sci-
ence would stop developing without human experimenta-
tion, we can allege that the development of life science
will slow down soon without human experimentation.
Yet as one of the indispensable elements of life science
research, human experimentation also brings about many
legal problems, which need law intervention. Among
these problems there are the ones that should be regu-
lated by criminal law. In China as well as other countries,
these problems become more and more urgent to be
treated with the rapid development of biotechnology.
2. The Challenges Brought by Human
Human experimentation plays an important role in the
development of life science. It has become a common
knowledge that human experiment is beneficial to life
science and human’s health after Edward Jenner, an En-
gland doctor, found the way to prevent smallpox through
implanting cowpox into a healthy boy. The success of his
experiment declared a lifelong immunity of human to
smallpox and helped human experiment attain its legiti-
macy [2, p. 412].
Yet human experimentation didn’t always come into
people’s eyes with a good image. It has also been taken
on an indecent role from time to time. The human ex-
periment done in the Second World War by Nazi doctors
as well as Japanese 731 troops are good cases in point.
During the World War I I, t he military doctors of Nazi di d
brutal experiments on prisoners as well as the Jews and
so on in the name of medical science. Many prisoners
died of such experiments. While in the east, more ruth-
less crimes happened. In order to achieve victory in the
fascist war, the Japanese army established many experi-
mental factories to develop biochemistry weapons, where
they did all sorts of brutal experiments on Chinese, Rus-
sian, Korean subject and so on. Thousands of people
were persecuted in such experiments [2, p. 414].
Besides the miserable experimentations in the World
War II, there are still many illegitimate human experi-
ments in the history of life science. In 1947, an experi-
ment assisted by American government was done with-
out informed consent on 18 persons to determine how
long the high-tech beryllium would be maintained after it
was injected into human body. In 1946-1948, U.S. gov-
ernment medical researchers did a research, in which
scientists deliberately infected Guatemalan research sub-
jects with syphilis to study how well penicillin worked
[3]. In 1996, Pfizer Inc. of Unite States did a pharmaceu-
tical experiment on nearly two hundred boys who had got
meningitis to test healing effect of Trovan. Eleven of
these boys died in this experiment while the left 181 boys
*I want to express my sincere thanks to Doctor Xiuqing Shen of Shan-
dong University, who helped me a lot in correcting the grammar mis-
takes of this article.
Copyright © 2012 SciRes. BLR
On Human Experimentation: A Perspective of China’s Criminal Law
suffered a lot from the experiment, almost all of them
disabled [4, p. 308]. In October ten, 2006, four Israel
senior doctors were reported to have done a medical ex-
periment on hundreds of old people which caused thir-
teen of them died.
Though it is important to the development of life sci-
ence and helpful to the health of human beings in most
cases, human experiments also produce offences as some
of the experiments stray away from bioethical principles
for irrational purposes [5, p. 162]. The illegal human ex-
periments we mentioned above are just cases in point.
Such experiments bring about great challenges to bio-
ethics as well as law. The challenges are very strident to
criminal law since it has to face such problems as follows:
whether irrational human experiments are maleficent,
whether it should intervene with the life science, how to
make balance between legitimate human experiments
and illegitimate hu man experiments if it should in tervene
with the experiment, and so forth. As more and more
human experiments take place with the development of
biotechnology, these challenges should be regulated pro-
perly by criminal law.
3. Literature Review on Illegitimate Human
Experimentation in Law
As human experiment is done on human body, it evi-
dently produces side effects on the subject, even leading
to the death sometimes. Under this background, it has
been an urgent problem to probe criminological issues
related with human experimentation. Many jurists have
done their research on this problem and put forward their
suggestions. Among these research, three problems
should be paid more attention to: 1) Why human experi-
mentation is legiti mate? 2) How to determine whether an
illegitimate human exp erimentation has beco me a crime?
3) Whether some medical human experimentation with
exploratory purpose should be regarded as crimes [6, p.
As far as I am concerned, the legitimacy of human
experimentation lies in the three factors as follows:
Firstly, human experimentation contributes to the pro-
gress of life science and thus helps people keep as well as
regain health, which brings about adequate reasons in
bioethics to make people accept doing experiment on
themselves. Namely, if a human experiment strays away
from the purpose of being beneficial to human them-
selves, it’s sure to be short of legitimacy and is standing
on the edge of a crime. Secondly, a legitimate experiment
on human being should be based on informed consent by
the subject. According to the famous Roman juristic
proverb, the human experiment based on informed con-
sent is legal, while it will be an offence without the con-
sent of the victim.
As to the question of whether some medical human
experimentation with quest purpose should be regard as
crimes, it rests on the risk of the experiment as well as
the purpose of the experimenter. If the experimenter does
an experiment with high risks which overweigh suffer-
ance of society, he should be viewed as conducting a
crime. On the other hand, if the experimenter does the
experiment not on the purpose of benefiting people’s
health, but to insult the indignity of the subject or the
indignity of human being, his conduct should also be
seen as a crime. Take the operation of brain death for
example, since brain death has been accepted as the
death criteria of a person by medicine professionals,
there’s not too much risks in such operations. What’s
more, there’s no insult in the purpose of the operator.
Under this circumstance, the operation of a brain death
should be viewed as legitimate and legal instead of a
crime or an offence.
4. The Law on Illegitimate Human
4.1. International Law on Illegitimate Human
Illegitimate human experiments are prohibited by The
Nuremberg Code, which was promulgated in 1947. The
Nuremberg Code proclaimed that the voluntary consent
of the human subject is absolutely essential and that the
experiment should be such as to yield fruitful results for
the good of society, unprocurable by other methods or
means of study, and not random and unnecessary in na-
ture. In Geneva Convention III and Geneva Convention
IV, illegitimate human experimentation is also seen as an
international crime. Another important international file
is the Declaration of Helsinki, which declared that the
purpose of biomedical research involving human subjects
must be helpful to improve diagnostic, therapeutic and
prophylactic procedures and the understanding of the
aetiology an d p at h ogenesis of disease.
4.2. The Law on Illegitimate Human Experiment
in Some Countries
Illegitimate human experiments are also prohibited by
the laws of most countries. And illegitimate human ex-
perimentation is even viewed as a crime by the criminal
law of some countries. In Japan, German, the United
States, as well as some other countries, illegitimate hu-
man experiments such as experiments without informed
consent are all prohibited. For example, although the
question of consent to medical research has not been
tested in an English court, any research that involves
physical contact would certainly require consent to avoid
being a battery. In France, Australia, Slovakia, Macedo-
nian and Serbia, an illegitimate human experimentation
will be seen as a crime and will be punished by the
Copyright © 2012 SciRes. BLR
On Human Experimentation: A Perspective of China’s Criminal Law
Copyright © 2012 SciRes. BLR
criminal law.
It’s self-evident that most countries have attached
great importance to the formulation of illegitimate human
experiments. Yet on the whole, only a few countries such
as Italy, France, Australia, Slovakia, Macedonian and
Serbia have formulated human experimentation in the
criminal law straightforwardly, while other countries for-
mulated illegitimate hu man expe rimentation o n ly by civil
law or administrative law as some scholars worried that
prohibition of illegitimate human experimentation would
hinder the progress of life science. As far as I’m con-
cerned, such worry is unnecessary, since the aim of the
intervention in human experiment by criminal law is only
to restrict the seriously unlawful experiments, but not to
refrain all human experiments. The legislation on human
experimentation should not be halted for the above
5. Criminal Countermeasures on Illegitimate
Human Experimentation of China
In China, human experimentation laws are urgently need-
ed as there are over eight hundreds of new medical hu-
man experiments every year, while only few laws could
be used in regulating illegitimate human experiments. In
China, the governance on illegitimate human experi-
ments need interven tion by criminal law as Chinese peo-
ple believe that, for some severely illegitimate experi-
ments, only criminal law could help. In the Law on Prac-
ticing Doctor s of the Peoples Republic of China enacted
in 1998 and China’s Goo d Clinical Practice published in
1996 as well as some other laws, medical research should
be conducted based on informed consent. And anyone
who does a medical research illicitly would assume
criminal liability. But on the other hand, the Criminal
Law of the Peoples Republic of Ch ina hasn’t establishe d
a criminal charge on human experimentation. Restricted
by the principle of statutory crime and penalty, which has
been adopted by China’s criminal law for over fifteen
years, China’s criminal law plays little role on an ille-
gitimate medical research.
In order to protect the subject more powerfully and
safeguard the healthy development of medical profess-
sions, there is an urgent requirement to amend a criminal
charge in Criminal Law of the Peoples Republic of
China, which makes it clear to all that illegitimate human
experiments are unlawful and whether they should be
punished or not.
[1] E. Jackson, “Medical Law: Text, Cases and Materials,”
Oxford University Press, New York, 2006.
[2] X. M. Zhai and R. Z. Qiu, “Outline of Bioethics,” Tsing-
hua University Press, Beijing, 2005.
[3] L. Villarosa, “The Guatemala Syphilis Experiment’s Tus-
kegee Roots,” 2010.
[4] Z. M. Ni and Q. S. Lu, “Introduction of Life Jurispru-
dence,” China’s Wuhan University Press, Wuhan, 2005.
[5] C. Q. Liu, “Biotechnology Crimes and Their Criminal
Countermeasures,” China’s Law Press, Beijing, 2006.
[6] C. Q. Liu, “Research on Life Science and Technology
Crime and Modern Theory of Criminal Responsibility and
System,” China’s Shanghai People’s Publishing House,
Shanghai, 2011.