Research On Several Issues Of The Crime Of Producing,Selling Counterfeit Medicine

In the contemporary society, people’s requirement of medicine security isincreasing. But the provisions on this aspect in Criminal Law in1997are insufficient.Although several judicial interpretations of the difficulties with conducting the crimeof producing, selling counterfeit medicine have been made by the Supreme People’sCourt and the Supreme People’s Procuratorate, the deficiency of legislation cannot becompletely made up. With the enactment of the Eighth Amendment of Criminal Law,the constitutive conditions, aggravating circumstances and the statutory sentence ofthe crime of producing, selling counterfeit medicine are amended, which has greatinstructive significance to judicial practice in the future. This thesis does research onseveral issues of the crime of producing, selling counterfeit medicine on the basis ofthe combination of relative legal provisions and judicial practice.This thesis starts with the study of the constitutive elements of the crime ofproducing, selling counterfeit medicine and then introduces the object, objectiveaspect, subject and subjective aspect of the crime. The author regards that the objectof the crime is complex object, including national medicine supervision system andunspecified majority’s rights of health and life. The behavior of producing and sellingcounterfeit medicine against national medicine supervision is the objective aspect ofthe crime. The subject of the crime is a general subject, that is to say any naturalperson or unit with criminal responsibility may commit the crime. In the author’sopinion, the subjective aspect of the crime is indirect intention without directintention or negligence. It is analyzed and elaborated in the first section. Besides, thedefinition of counterfeit medicine, which is the target of the crime, and thecircumstances regarded as counterfeit medicine are also explicitly demarcated in thissection. The thesis studies the problem of joint offence of the crime on the foundationof a comprehensive mastery of the constitutive elements. The author introduces the identification of joint offence of the crime, differs unit crime and joint offence of thecrime, and illustrates the circumstances of medicine endorsement which are convictedin accordance with the joint offence of the crime. The following section is anintroduction of the concurrent problems of the crime, including enactmentconcurrence between crimes of producing, selling counterfeit medicine andcounterfeit products, and imaginative concurrence between crimes of producing,selling counterfeit medicine and conducting illegal operations. In order to specify thepromiscuous circumstances in judicial practice and in the hope of providingtheoretical assistance, the thesis explains the differences between the crime ofproducing, selling counterfeit medicine and other relative crimes, such as crimes ofproducing, selling inferior medicine, fraud, endangering public security withdangerous methods and passing off registered trademark. At last, after summarizingthe evolution of criminal legislation on medicine security, the author generalizes theproblems of present legislation of this crime, consisting of the facts about the crimeand the statutory sentence of the crime. Suggestions are given as follows: firstly, todetail the.provisions of aggravating circumstances; secondly, to establish a relativelycertain penalty; thirdly, to enhance the legislative rank of the crime.