Study On The Difficult Problems Of Illegal Medical Practice Under The New Judicial Interpretation

Due to the long-term lack of medical resources in China,combined with the huge profits of the medical industry itself,it makes some people who do not have the qualifications of doctors to take risks for economic interests,threatening the health of the vast number of patients in the name of medical services.In order to curb this phenomenon,the 1997 criminal law set up illegal medical practice crime,this opened the criminal law to combat illegal practice of the big screen.But in the past 20 years,there are many issues involved in this crime,the theoretical and practical circles are controversial.Through the review of the practice of trial practice in the past,the Supreme People's Court finally amended the judicial interpretation of the illegal medical practice crime on December 20,2016,excluding the "personal failure to obtain medical institutions permit" of illegal medical practice crime,And proposing "direct,the main reason" clear criteria for identify illegal medical practice causing death which is difficult to cognizance the causality in practice.However,the author believes that the crime of illegal medical practice still exists the following questions by careful reviewing of the revised judicial interpretation: First,whether the legal interests of this crime include the medical management order and taking the medical management order as the legal interests of this crime is appropriate;Second,whether it belongs to the subject of illegal medical practice when a person obtains the "physician qualification" but do not register;Third,how to understand the judicial interpretation of "illegal practice is not the direct or main reason of causing death".And how to identify the causal relationship of illegal medical practice causing death;Fourth,whether the statutory punishment is reasonable for illegal medical practice causing death.If not,how to improve it.In response to the above four questions,this paper intends to respond combining the trial practice for the past three years.To this end,the author statistics and analysis of the criminal cases published by Non-lawsuit from 2014 to 2016,and sort out and summarized a total of 210 cases of medical treatment causing death which will be explained combining the specific issues by examining the cases' provinces,the trial process,the situation of perpetrator without a doctor qualification,the medical evidence of causing death,the paper of forensic science on the medical causality,the verdict for the causal relationship,the defendant defense of the causal relationship,the court defense of the defense of the defendant,the verdict,whether adopted the probation,sentencing circumstances and other eleven elements.The first chapter is the history of illegal medical practice.By reviewing the establishment of the crime of illegal medical practice,it shows the time sequence and the relationship between the criminal legislation and the administrative legislation,and the difference between the administrative law and the criminal law which is the direct reason causing disputes of the judicial application.After combing the promulgation and revision of the judicial interpretation,it clarifies the four problems that need to be further explored after the revision of the judicial interpretation,that is,the legal interest,the subject,the causal relationship and the legal punishment.The second chapter is the thought on legal interests of illegal medical practice crime.The legal interests of illegal medical practice mainly exist simple object and complex object of the debate,but no matter where the medical management order is one part of the legal interests.In this regard,this article does not recognize the medical management order as a legal interest of illegal medical practice.First,the meaning of medical management order is too large.It take the overall medicalmanagement order as a criminal law to protect the legal benefits,that will improperly expand the scope of criminal law protection,thus expanding the criminal circle;Second,the medical management order becomes a legal protection of the object,which may make a simple violation of the medical management order without endangering the right to life and health punished by criminal penalties.In practice,such phenomena are not examples.Based on the investigation of criminal legislation and judicial interpretation,the right of life and health of people is the content of direct concern in our criminal law.Therefore,the legal interest of this crime should be the right of life and health of people.The third chapter explains the subject of the crime of illegal medical practice.By sorting out the theoretical controversy about "not obtaining the qualification of doctors practicing",it examines the effect of the new judicial interpretation on the determination of the dispute,and clarifies the focus of the controversy that still exists on the main body,that is,whether the perpetrator belongs to the subject of this crime when he obtains the "physician qualification certificate" but not acquires "physician practicing certificate".Since the subject of this crime is still the scope of criminal law interpretation,and therefore unreasonable explanation path will produce identification on the deviation.In the case of the subjective interpretation of the crime of illegal medical practice,it is necessary to take the explanation of the meaning as the priority and the legal interests protection as the necessary explanatory path.Based on the revision of the judicial interpretation and the legal interests protection of this crime,the author believes that the perpetrator will not constitute illegal medical practice as long as obtaining the "physician qualification certificate".The fourth chapter is the causation in the illegal medical practice crime causing death.Combined with the judicial practice of jurisprudence and data,we can see that there are still similar cases in the judicial practice of different identification,judgments avoiding the causality,medical causation with the terminology ambiguity difficult to find out and other three issues.In this regard,although the new judicial interpretation proposed specific standards,the intervention of criminal causation isstill necessary.This is because the standard is relatively simple.However,it is necessary to introduce the theory of objective attribution and distinct between factual judgment(attribution)and result attribution(imputation)in the causality of criminal law because of the limitation of "causal judgment" and "strict rule of rule",so as to avoid the far-fetched causal relationship.On the attribution and imputation of "causing death",the author analyzes the types of jurisprudence with great difficulty in practice,and puts forward a specific basis for this,which is: 1.Can not be based solely on delayed treatment result attribution;2.secondary association can not be used as a "main reason" of causing death;3.When there is a discouragement of medical treatment,the results should be responsible because of its direct increase in the risk of death.The fifth chapter is improvement to the statutory punishment of illegal medical practice causing death.After investigating the practice of sentencing,we can find that there are some problems in the judicial practice,such as the differences between the sentencing and the general over-lighted sentencing,and even the case of probation.From the practice of the over-lighted sentencing,we can see that the practice of death caused by illegal medical practice is too heavy.The amendment of the statutory punishment has a double basis on theory and reality.On the other hand,based on the comparison with other crimes,the new judicial interpretation still conceals the shortcomings of the legislation itself.First of all,it should be based on the fairness of the penalty,so that the setting of the sentence should be in accordance with the Principle of Appropriate Sentence and the purpose of crime prevention.Secondly,the coordination of the three sentencing extent within the crime should be the overall practice of illegal medical practice to reduce the statutory punishment,that is,the case which seriously damages the health should be included into the first sentence and severely punished;If the case causing death,that is to be sentenced to not less than three years and not more than seven years of fixed-term imprisonment and fined.