Research On The Crime Of Illegally Medicine Practice

The crime of illegal medical practice is set up in our criminal law of1997by paragraph1of the336th article. As this provision is too vaporous and lacking of feasibility, it causes disputes and conflicts continuously in the judicial practice a lot. As a result, The Supreme People’s Court announced "The explanation of concrete application of cases of illegal medical practice" on May8,2008. It prescribed some issues of several serious situations such as "the standard of serious injury of patient’s health" and "the identification of illegal medical practice of people who failing to obtain the practice qualification. It has active meaning for the identification of illegal medical practice in judicial practice and clearing the dispute. However, as the explanation was lacking of the internal logic and accurate description, the relevant disputes on this guilt still exist in the theory and judicial practice.In this paper, through the implemented laws, regulations and the trials of the people’s court, I use criminal law theory, comparative analysis, example analysis and other research methods to d discuss the legislative history, constitution, issues and resolutions of the crime of illegal medical practice in detail, with the purpose of eliminating the controversies in practice. This paper describes the crime of illegal medical practice in three main aspects:The first chapter is an overview of the basic theoretical knowledge of the crime of illegal medical practice. Though the legislative history of the crime of illegal medical practice for longitude, I would make a clear view of the history; through the comparison of the crime at home and abroad for latitude, I make the similarities and differences of the origin and conviction; through the analysis of the characteristics, I give a multi perspective for the comprehensive introduction of basic theory of the crime of illegal medicale practice in China.The second chapter is a comprehensive introduction of the constitution and the discussion of the judicial relevant explanations. I would explain the crime from the four elements of a crime:the objective aspect, the subject, subjective aspect and the object. Through the dispute opinions, I suggest that the main object of the crime is non-material object which is the management system of medical and health, the secondary object is material object which is the health and life safety of patients; the explanation of objective aspect is focusing on administrative law and criminal law and the causal relationship; in criminal subject, I introduce the decisive but controversial view of "not obtaining a doctor’qualifications", and I reflect the shortcomings of the judicial explanation by the supreme court; major research of subjective aspect is the constitution of the crime, as well as the subjective state of mind of the consequential offense, I suggest that the profit is not the purpose of this crime. The third chapter discusses the disputes in the judicial practice and proposes practical improvement. I focus on the sevaral following aspects:1, whether the unit should be the subject of the crime of illegal medical practice;2, whether the people who "do not have the qualification but with competence of Chinese medicine" should be the subject of the crime;3, whether the people who obtain qualifications but working beyond the place, category and scope of practice should be treated as the crime;4, whether the illegal identification of fetal sex should be treated as the crime;5, identifiing the standard of aggravating situations.;6,legal sentence issues.After the full argument of the relevant controversial issues, then I raise the advice of improvements, I believe some ways to improve which include:1, increasing the unit as the subject of the crime, finding illegal identification of fetal gender behavior which cause serious consequence as the crime of illegal medical practice;2, improving the administrative rules and regulations, adding the people who "do not have the doctors’ qualifications, but with recognized competence in Chinese medicine" as the subject of the crime;3, regulating the standard and forensic institutions;4, optimizing the sentencences of the crime of illegal medical practice.