The Research Of Basic Issues In Crime Of Unlawful Medical Practice

In 1997, a new article about crime of unlawful medical practice wasadded in No. 336 Criminal Law:"whoever, without obtaining thequalification for practicing medicine, unlawfully practices medicine, if thecircumstances are serious, shall be sentenced to fixed-term imprisonment ofnot more than three years, criminal detention or public surveillance and shallalso, or shall only, be fined; if severe harm is caused to the health of theperson seeking medical service, he shall be sentenced to fixed-termimprisonment of not less than three years but not more than 10 years andshall also be fined; if death is caused, he shall be sentenced to fixed-termimprisonment of not less than 10 years and shall also be fined."But there arecontroversies about how to apply this law in practice. So this paper tries tomake some combed in crime of unlawful medical practice combined with some cases and latest judicial interpretation, it's divided into following fourparts:Part 1, it mainly discusses the object of the crime of unlawful medicalpractice, the author thinks that it's complicated object, namely, the right ofpublic life and health as well as national health management order, two ofthem are not in the same position.Part 2, it discusses the main objective respect of crime of unlawfulmedical practice, beginning from the connotation of unlawfulness, andemphasizing to distinguish two kinds of illegal medical practice, describingthe essential characteristic of occupational criminal, making detailedexplanation of medical behavior, analyzing the meaning of circumstanceaggravation and latest judicial interpretation, at the end of this chapter, it paysmore attention to analyze connotation of"severe harm is caused to the healthof the person seeking medical service"and"death is caused to the personseeking medical service"and give some suggestion of normative files thatshould be used in judicial expertise.Part 3, this part analyzes"qualified doctor"in criminal law, combinedwith judicial interpretation and cases; presenting that without obtaining thequalification for practicing medicine refer to without passing examination ofpracticing doctors qualifications, registration is only administrative measures, having nothing to do with Criminal Law, so as to embody the spirit ofjudicial deference and restraint in Criminal Law; this part also discusseswhether graduate in probation and trainee can be the subject of this crime.Part 4, it discusses the basic constitution of this crime and subjectiveelements of aggregated consequential offense respectively, and concludesthat subjective respect in basic constitution is intentional, but it will becomesfault of"negligence"in the situation of aggregated consequential offense.