Study On Several Problems Of The Crime Of Illegal Medical Practice

The crime of illegal medical practice is new offence of article 1 of the 336th in the new penal code. Because the legislation on the crime of illegal medical practice is quite general, it caused inconvenience in judicial practice. And these questions are fiercely discussed in academic circles. To certain the meaning of"no qualification of medical practitioners", the general theory of the criminal law should be used. On the different qualifications for illegal medical practitioners between criminal law and administrative law, the standard to certain the subject of the crime can be reasonably found. Combining increasing social phenomena of the crime of illegal medical practice at present, the subjective should include the companies of medical practice and the commission of beauty care.What's more, about the subjective aspect based on the analysis of the theory of guilty mind of the criminal law in our country we think the basic of the subjective aspect of the crime under discussion is its intention. But on the result-aggravated crime the subject aspect is normally negligence, but sometimes it can also be indirect intention. In order to certain subjective aspect,we should investigate the behavior of the subject. Whether the illegal practitioners perform the duty of care or not is the way to find the subjective aspect. And the duty of care comes from the rules of health management laws and regulations, medical habits and medical literature. Once illegal practitioners violate the duty of care above, we can firmly believe the behaviors have subjective sin.The criminal law formulates aggravated consequences, so it's quite important to find the causality between illegal practices and the harmful consequences. In judicial practice the judge usually adopt medical conclusion to identify the causality. But different accreditation body gives different conclusion, this affects the authority of the conclusion. What's more, scholars have different opinions on how to decline the causality. According to the aggravated consequences, significant causal theory can be used to identify the relationship between the actions and the results. And we should also pay attention to the intervention element which can cut down the criminal causality.