Judgment On The Substantive Illegality Of The Manufacture And Sale Of "Fake Drugs"

In judicial practice,many imported drugs,homemade drugs or traditional Chinese medicines have the efficacy of genuine medicines.Because they have not obtained import licenses or production batch numbers,they have been drafted as “fake drugs” by the Drug Administration Law and are directly applied by criminal law.The conviction of punishment is obviously unreasonable.The crime of manufacturing and selling fake drugs is blank facts about a crime.The application of the crime is subject to the provisions of the Drug Administration Law on fake drugs,but what are the fake drugs under administrative law? What are the fake drugs in the meaning of criminal law? Can the two be completely equivalent? What is the legal interest protected by the crime of manufacturing and selling fake drugs? How to balance the relationship between the formal judgment of criminal law and the evaluation of substantive value? By citing three cases,this article starts from principle of a legally prescribed punishment for a specified crime and discusses whether the behavior of manufacturing and selling fake drugs is substantively illegal.In addition to the introduction and conclusion,the full text is divided into four parts,totaling about 30,000 words.The first part asks questions by citing three different cases.For example,Lu Yong sold imported drugs,Zhang Jiangang sold new drugs,Zeng Zhaohui,and Zeng Jiesui manufactured and sold traditional Chinese medicines.The above-mentioned actors manufactured and sold drugs with genuine curative effect,but the judicial personnel identified the drugs as fake drugs on the grounds that they did not obtain the administrative approval numbers.In addition to the withdrawal of Lu Yong from prosecution,the other three actors constituted the crime of manufacturing and selling fake drugs.There are many similar cases in judicial practice,which raises the question: Can the “fake drugs” formulated by the Drug Administration Law alone support the criminal law to impose criminal punishment on the above-mentioned actors? Can Chinese and Western medicines that have not obtained import licenses or production batch numbers be simply evaluated as fake drugs of criminal law significance? How to deal with the relationship between formal illegality and substantive illegality?The second part is mainly to analyze the legislative overview of the crime of manufacturing and selling fake drugs at home and abroad.Through the research and reflection on the legislative changes concerning drug safety in China's Criminal Law,the author finds that the law setting mode of the crime of manufacturing and selling fake drugs has been developed from the consequential offense of 1979 to the specific dangerous offense in 1997,and then to the abstract dangerous offense of the Criminal Law Amendment(8)in 2011.The changes in the law on the crime of manufacturing and selling fake drugs indicate that the state has been stricter in cracking down on the manufacture and sale of fake drugs.By carding and summarizing the legislative overview of drug safety in foreign countries,the author tries to summarize the commonality of the definitions of fake drugs in various countries,and how to categorize the drug-related crimes in order to better reference the nature of China's manufacture and sale of fake drugs.The third part discusses the substantive judgment of the legal interests of the crime of manufacturing and selling fake drugs from principle of a legally prescribed punishment for a specified crime,criminal policy of temper justice with mercy and the principal of compress and modesty.Adhering to the principle of legally prescribed punishment for a specified crime requires judicial personnel to face acts that are formally illegal but not substantively illegal.They insist on substantive rationality as the basic criterion,explore the value and purpose behind the law,and based on the different legislative purposes,value orientations and ways of assuming responsibilities between the administrative law and the criminal law to separate the “fake drugs” formulated by the criminal law from the administrative standards appropriately,and the independent value judgment is made.The implementation of the criminal policy of temper justice with mercy requires paying attention to the unity of legal,social and political effects.Understanding and applying the theory of “common sense” will exclude acts conforming to absolute spirit or the most kindness from the scope of criminal law regulation.Adherence to the principal of compress and modesty requires judicial personnel to apply the law in a spirit of tolerance and harmony,advocate the prudent use of penalty power,and pay attention to the proportionality and minimum means of application of punishment.The fourth part starts from the value measurement of legal interests and discusses the compound legal interests behind the crime of manufacturing and selling fake drugs.If there is a number of legal interests behind a crime,is there a level between the legal interests? Is the subsidiary legal interest subject to the main legal interest? The author believes that the reason why the manufacture and sale of fake drugs constitute a crime is not only that the act infringes on the order of drug management,but more importantly,the manufacture and sale of fake drugs will seriously endanger human life,health and safety.However,when the proposed "fake drugs" does not infringe on the main legal interest of human life,health and safety,and indeed maintains the main legal interest,even if the behavior disturbs the order of drug supervision,it cannot satisfy the constituent elements of the crime of manufacturing and selling fake drugs.