Research The Crime Of Illegal Medical Practice

Illegal practice of medicine is a crime of endanger public health in China's criminal law. It's a new charge of 97 criminal. However, for the lack of theoretical research, this charge's constituent elements have been defined in terms of dispute since it been produced. In order to define the constituent elements of this crime more accurately, and to grasp the offense used in judicial practice, this paper combine with laws, regulations, judicial interpretation, and criminal law theory, and use criminal law theory, use comparative analysis, empirical analysis methods to illustrate medicine outline and the judicial determination and other related issues of the Illegal Practice more comprehensive, and help people use this judicial practice.This paper is divided into three parts to discuss the crime of illegal medical practice.The first part is an overview of the crime of illegal medical practice. This part is general description, mainly on the meaning of this crime, causes, legislative history, etc, by understanding the concept of this crime and the legislative process, we can have a general understanding about the concept and background of this charge.The second part is about constitutes the crime of illegal medical practice. This paper explained the object,objective aspect,subject, subjective of this charge in details, and discussed difficult problems which exist in it. In one hand, objective behave of crime of illegal medical practice is the provision of medical institutions and medical practitioners against the administrative regulations, on the other hand, it also threat to health and safety of human life in society. Therefore, in my opinion, the object of this crime should be the state of medical institutions and medical practitioners in the management of order and public health on the objective aspect of this crime, the first requirement is that the perpetrator"illegal practice"and, secondly, the extent of illegal medical practice required to achieve"serious"so for this crime, the conviction is the key to the"illegal practice"and"serious"defined. Found in the main body of this crime, the author considers that the subject of the crime is a special subject, for those who have"qualified medical practitioners"do not constitute the main body of the crime. Therefore, the definition of the meaning about the"qualified medical practitioners"is crucial to determining the scope of this crime. As the"qualification for practicing"not appeared in our laws, while licensure and physicians practicing certified is separated in china, so it have a dispute in definition for"qualified medical practitioners"I believe that this crime of"qualified medical practitioner"should be understood as qualified medical practitioners and physicians with a practicing certificate. For subjective aspect of this crime ,I believe that the establishment of the subjective state of mind of the crime is intentional, and for the results of this crime is aggravated health of patients or caused death by treatment, the perpetrator should be the fault of the subjective state of mind rather than the indirect intention. In addition, this crime is considered as professional committed, this crime does not require that the perpetrator has the purpose of profit.The third part is about the judicial cognizanceof illegal medical practice. This section discusses identification whether this action is a crime or not and difference of adjacent crime. To identify the action is a sin or not, it important to grasp the scope of body and objective aspects of performance, but also pay attention to the victims of this crime committed in the effect. I believe that crime in the illegal practice can not exclude the social harmfulness of victims just because theirs'commitment. It can not be a victim of the law negates the subject of this crime. On the find of consequential offense of this crime, I believe that justice found should grasp two levels, one is the result of increased awareness of this crime, and second, the causality relationship of the behavior of the crime in the illegal practice and consequential offense. In addition, to distinct this crime and the other crime, people easy to confuse the crime with medical, surgical birth control illegal for the crime, organize and use secret societies, cults, superstition to causing death by negligence or intentionally.The mainly difference between this crime and crime incidents is subject of crime. The subject body of former crime did not get qualified medical practitioners, the subject body of after crime are medical practitioners. And the difference between this crime and the crime to organize and use the secret societies, cults, superstition to causing death is the objective behavior. The former behavior is illegal medical practice act, while the after behavior is not a medical practice act. The difference between this crime and the crime of causing death by negligence is subjective attitude. The former attitude is intentional, while the after attitude is negligence.