Illegal Practice Of Medicine Study

The crime of illegal medical practice is the fresh crime set up in the new criminal law 1997. There are still many problems involved in both the theory and the practice. On one hand, this crime is inconspicuous, the research of the theory is still insufficient; On the other hand, the ambiguous regulation of criminal law and lack ofjudicial explanation cause many disputes in practice. This text discusses the relevant knotty problems about the crime of illegal medical practice in terms of criminal law theory, expecting that the relevant judicial explanation will be set up soon in order to offer legislating proposition for judicial practice. The full text divides into three parts.Partâ… : This part is introduction. It mainly discusses the historical evolution and the differences between the legislation in China and the legislation in other countries or areas. The Roman people had set up permit system on medical practice for the first time in the ancient Roman time. From then on, the various countries stipulated different prohibition to illegal medical practice one after another. So the crime of illegal medical practice and the licensing system of medical practice were produced at the same time. In China, there was no prohibition to illegal medical practice in the feudal legal history, until the government established doctor's test system in Yuan dynasty. After new China had been established, there was no article in the criminal law about illegal medical practice, until revision draft of criminal law 1997.The differences on the stipulation about illegal medical practice in present criminal law between our country and other nations or areas displays in two aspects: the first is the different legislation pattern; the second is the different legal responsibility.Partâ…¡: This part researches on four aspects in terms of the article about the crime of illegal medical practice in our present criminal law, namely: The limitation of"medical practice", "illegally" , "obtainedno doctor's qualification" and" serious nature".The behavior called "Medical practice" is one kind of business behavior, which is referred to the behavior which person repeatedly or continually implement or at least indicate the meaning to repeatedly or continually implement, and this action may manifest its social role and the social division of labor, neither need this kind of activity to be legitimate, nor request the goal to make a profit. The definition of medical behavior also has many disputes. But to define the medical behavior according to the crime of illegal medical practices, we should refer to each constitution of the crime of illegal medical practices and original intention of the legislation, it should be defined like this: The medical behavior is a kind of behavior with the certain risky which exerts the influence to the human body shape or the function according to the special details for the medical intention, and it should be made by doctor based on the specialized knowledge. At the same time, the correlation limits in some administrative rules and regulations may provide some references for research and practice.To explain "illegal", the act is judged as "illegal" so long as "the defendant has not obtained doctor's qualification", no matter how does he make the medical behavior. And promise of victim cannot exempt the defendant from the responsibility. There are many rules and regulations that stipulate the condition and procedure to obtain the doctor's qualification, fully considering the special national condition of our country. Therefore, A legitimate doctor, must pass through a series of tests first, then can start to practice after the registration. But a doctor's qualification does not include "A Permit of medical establishment", because a doctor's qualification is mainly referred to individual intrinsic ability but not to the external condition. The external condition does not need to use the penalty. But even if one has obtained a doctor' qualification, there is still the possibility to commit the crime of illegal medical practice, under the situation that his practice is beyond the category and the scope in registration.In the "serious nature" found, the authorities should be entitled to an explanation, by combining a schematic rule with specific examples. The followed three areas should be pay attention to: 1. The detail can't be duplicate judged as constitution and the basis for serious nature; 2. The other offenses committed in the course of the illegal practice, can't be judged as serious natures; 3. profit, long time, altering or forging qualification certificates or obtaining it by a wrong way should not be used as serious natures. Partâ…¢: This part research on two issues, one is the standard of "Seriously damaged the health of a man who goes to a doctor"; the other is the causality in the aggravating results ofillegal medical practices.The standard of "Seriously damaged the health of a man who goes to a doctor" should adopt the standard of medical blunders, the reason is: 1. Compared with the crime of medical blunders, the provision of aggravating results of illegal medical practices use the same composition and expression, this is not accidental. 2. Medical behavior is highly technical and professional, and the causafity between their conducts and the results are fairly complex. The conclusion to the identification of medical blunders includes not only the confirmation of the facts, but also the level of responsibility of medical negligence. 3. the identification before the justice will not deprive the judge's jurisdiction, The causality of professional fields is the judged by experts, and the causality related to the criminal responsibility is still judged by judges. 4. The standard of medical blunders is professional, so it can cover the complicated results caused by medical behavior.The causality in the aggravating results of illegal medical practices is complex, it should be judged by experts on the first level, but the conclusion by experts include only a causality according to the fact but not a legal act which can be used to determine the criminal responsibility. To discuss the causal relationship between the act and result, the defendant must act with a sin, then the causality can be formed between the harmful act and result. Then, there are two principles which should be followed to confirm the causal relationship, that is, the medical fault cause the probability, but if the result would happen with out the fault, the causal relationship between can be ruled out.