Study On The Problems Of Illegal Practice Of Medicine

The crime of illegal medical practice is the fresh crime set up in first paragraph of article 336 of new criminal law 1997. On one hand, this crime is inconspicuous, the research of the theory is still insufficient; there still exists many theory disputes; On the other hand, because of the ambiguous regulation of criminal law and lack of judicial explanation, that cause many disputes in practice and some cases to be difficult to deal with. This text combines the laws and regulations that has already issued and implemented, draft it in terms of criminal law theory, and discuss the relevant knotty problems involved in practice, expect the judicial practice department declares the measurement of penalty guilty accurately, attack the phenomenon of illegal medical practice, safeguard the national health care management order, ensure the citizen's life and health right; Offer legislating proposition to legislative department to improve the crime of illegal medical practice. The full text divides into five parts, about 50,000 words altogether.First, introduction. It mainly expounds the legislative punishment about illegal medical practice, and the development course from administrative statute to crime legislation to attack the phenomenon of illegal medical practice, and the current research situation and purpose etc. .Second, the objective respect of crime. This part is comparatively the difficult, complicated one in the crime. Article mainly discusses practicing medicine, illegal medical practice, serious nature, serious injury to injured health and death.About practicing medicine, it mainly describes two kinds of meaning of practicing medicine, have drawn lessons from Japan, Taiwan and mainland scholar of our country of the understanding to practicing medicine, introduce the character of the medical behavior in current, it is a kind of business to practice medicine.About illegal medical practice, the author has proved the meaning of illegal medical practice according to the hygiene laws and regulations. Summarizing, it includes illegal subject and illegal behavior, there are the following three situations: (1) lack of medicine qualification of operation place and individual; (2) the operation place has the medicine qualification but individual of operation do not; (3) the operation place do not have medicine qualification but individual of operation do. This part mainly proves the behavior is illegal, and points out that the crime is that a kind of job crime. About " of a serious nature ", it expounds the meaning of a serious nature and ten kinds of forms of expression 11 of a serious nature ". The meaning of " serious injury healthy to the i 1 led " is it belongs to " medical crash handling regulations " which regulates first class second grade malpractice, second and tertiary malpractice or reaches "serious wounded determined standard " confirmed one of severely injured degree. Understanding to that " lead to the death of i1 led", according to appraise, to use this measurement of penalty grade just when practice medicine behavior is the direct and basic reason, as to the behavior is only auxiliary cause of the death and inducement that " leads to the death of i 1 led", it is not applicable to this grade of measurement of penalty .Third, the subject of crime. The most disputable question in the crime is the subject of crime, in this part, the article mainly described the following problem: The subject of crime is natural person's special subject, the person who has already obtained doctor's practicing qualification is not within the range of the first paragraph of article 336 in criminal law; The article analyzed and proved the meaning of doctor , doctor's qualification , medical practitioner's qualification , doctor's practicing qualification ,etc.. It pointed out that the doctor's practicing qualification and medical practitioner's qualification aredifferent, it is the unity of doctor' s qualification and practicing qualification; and it enumerated out six kinds of situations not obtaining doctor's practicing qualification; to the question that appear in practice, the article proved the asserting problem from two respects: the situation before and after issuing of the regulation of medical practitioner's qualification and country doctor management regulation; Finally, proceeding from practice, the article proved that the people and unit obtained the doctor practicing qualification should be the guilty subject of the crime of illegal medical practice, and offered the suggestion of legislating.