Study On The Constitution Of Crime Of Illegal Medical Practice

Established in the Criminal Law 1997, the Crime of Illegal Medical Practice is of great importance to regulate the medical and health order of the State and crack down on illegal medical practices. There are however still continued controversies on the conviction and sentencing of this crime in the academic and practical circles since its legislative language is relatively recapitulative and the judicial interpretation fails to effectively resolve the legislative defect. Starting from four constitutive elements of a crime, this paper explores the theoretical differences in the constitution and determination of the Crime of Illegal Medical Practice, and gives emphasis to analyze the scope of subject, criterion for conviction and sentencing, and determination of cause-and-effect relationship of this crime.In the opinion of the author, it is inadvisable to expand the interpretation of the subject of this crime. As stipulated in the provisions of the Criminal Law, people with the qualification for practicing medicine are only required to acquire such qualification rather than to necessitate the registration; it is inadvisable to treat people practicing outside the registration as illegal medical practice; actions of people who have passed the examination or evaluation and are waiting to be issued the qualification certificates do not constitute the illegal medical practice; medical care personnel on internship who practiced medicine without the consent of the practicing physician or independently may constitute the subject of this crime; medical and health personnel without the rights of diagnosis, treatment and/or prescription who practiced medicine outside their practicing scope do not constitute this crime; people without medical practicing certificates who performed medical beautification service may constitute the subject of this crime; the prevailing laws have not stipulated the corporate crime of illegal medical practice, but it is necessary to regulate such crime. The object offended by this crime is a complicated object. This crime offends not only the management order of the State on medical institutions and personnel but also the public health. Intent is the offence form of this crime in the subjective aspect. In the determination of this crime in the objective aspect, the seriousness of the circumstances is the criterion for finding a crime or innocence, for which both the provisions of the Criminal Law and the judicial interpretation apply vague language, and the stipulation by samples is not exhaustive and is difficult to be performed in practice, consequently, the conviction criterion shall be further defined; in the determination of aggregated consequential offense, the author agrees to find "seriously harmful to the patient's physical health" on the basis of medical standards, and suggests to consider the standard of brain death as the new criterion for determining the death; the determination of the cause-and-effect relationship of aggregated consequential offense is crucial, and hence the evidentiary value of the appraisal report shall be measured properly while a special authority shall be assigned to establish uniform standards in order to regulate the appraisal on the cause-and-effect relationship. The author also expounds other special circumstances existing in the objective identification, and is of the opinion that the commitment of the victim shall not influence the constitution of this crime, but the lack of the expected possibility may hinder from the establishment of the crime.Subject to the study on the legislative status of and theoretical controversies on this crime and by reference to the opinions of experts and scholars, the author put forward some humble opinions for the perfection of the legislation on this crime, and suggests to give the substantial interpretations to the "qualification for practicing medicine" and the "act of medical treatment", additionally establish the corporate crime of illegal medical practice, further define the standards of "the circumstance is serious", consider the brain death as the new criterion for determining the death, and regulate and perfect the judicial appraisal on the cause-and-effect relationship.