Research On The Crime Of Illegal Medical Practice

The 1997 Criminal Code stipulates the crime of Illegal Medical Practice under Article, which provides a legal basis for preventing positively and cracking down hard on such actions. Because the meaning of the article is vague and there is no legislative or judicial interpretations on this article, and also because theoretical opinions differ on concrete issues, there are a lot of divergences in practice. The imperfection of the regulation and the different opinions in theoretical circles are the main reasons which lead to inefficiency in combating the crimes of illegal medical practice, the unity of the state legal system and the solemnity of the law thus suffer.This thesis reviews the current legislative situation of illegal medical practice, analyses its theoretic criminal elements and discusses the difficulties during the judicial cognizance, comprehensively researches the crime of illegal medical practice from the theoretic and practical angles, to provide the ways and approaches on how to resolve theoretic ambiguity. The whole thesis probes and discusses this topic using research methods such as illustrative analysis method, comparative analysis method and demonstrative analysis method and so on, in order to form academic cognition about the definition of this crime. In the end of the thesis, it puts forward the thoughts and ideas about the current problems which need to be solved urgently to perfect the legislation. The whole content of the thesis including four parts are as follows:Chapter one is the introduction to the current legislation of illegal medical practice. The crime of Illegal Medical Practice enters into legislative process is the needs of reality of china's social development."Medical Institutions Management Ordinance"which came into force as of September 1, 1994, standardized how to legally practicing medicine ,but not put forward formally the concept of"illegal medical practice", which is regarded as a crime in the amendment of Criminal Code in 1997. Its fundamental purpose is to establish and protect the normal medical management order, to safeguard public health and safety.Chapter two based on the common criminal elements, analyzes scholars'academic views of illegal medical practice from four aspects of criminal object, objective aspect, subject, and subjective aspect, the author raises and demonstrates his view. This crime's object is to endanger public health order singly. On objective aspect, there are two important objective standards ,the action of"illegally practicing medicine"and the"serious cases". The"serious cases"includes the serious on subjective vicious and means way and against results and so on. Its subject ,are special which not gain the physicians license, are non health professionals, including health workers,pharmacy staff,nursing staff and so on. Its subjective aspect is intentional, mainly for direct deliberately.Chapter three deals with the difficult problems of this crime in judicial practice. In this chapter, the author focuses on the difficulties on how to define the subject of this crime and judicial expertise in those cases and the differences with other crimes, so that the subject of this crime will be defined accurately and the penalty will be applied appropriately and the differences with non crimes and also with other crimes will be clear.Chapter four focuses on the improvement of legislation on the crime of illegal medical practice. To improve the legislation, based on the legislative contrast at home and abroad, the author figures out the lack of criminal legislation and proposes ideas that article 336 should be specified in the scope of the subject and the crime action and the circumstances of the crime, reducing the crime penalty of this charge , increasing the provision of unit crime,to prevent the crime expansion and the arbitrary judicial discretion.