Research On Difficult Problems Of The Crime Of Producing And Selling Counterfeit Medicines

Drug safety is related to the life,health and safety of the national,and it is an important regulatory field of national public security.With the frequent occurrence of drug safety accidents in recent years,the problem of drug safety affects every national sensitive and fragile nerves,and citizens put forward higher requirements for the strength of the State to combat drug crime.The introduction of the Criminal Law Amendment(eight)of the People's Republic of China is undoubtedly in response to this concern of the people,and the Criminal law Amendment VIII will "be sufficient to endanger human health" the conditions for the abolition of the crime,so that the crime of producing and selling counterfeit medicines has completed the transformation from a specific dangerous offender to an abstract dangerous offender.The decrease of the crime threshold of counterfeit medicine makes the focus of this crime on the identification of counterfeit medicines,and the identification standard of "counterfeit medicine" in the crime of producing and selling counterfeit medicines is in full accordance with the provisions of the drug Management law,and the drug management law,as a norm of administrative law,focuses on the regulation of the Order of drug supervision and management.As a result,many drugs that are not practically harmful are also intended to be "counterfeit medicines" out of the need for drug regulation.This formal identification standard does not take into account the particularity of China's pharmaceutical industry at all,especially special drugs such as folk partial preparation.In addition,the sale of unapproved overseas qualified drugs has also become the object of regulation,which has led to a large number of drugs without practical harm into the scope of criminal law regulation.The case of production and sale of counterfeit medicines has begun to show a rapid growth trend,and there have been many highly controversial cases,such as the Lu Yong case and the Ni Hai Qing case,which have also brought a lot of difficulties to the application of this crime in judicial practice.At the same time,there are some defects in the scope of regulation and the allocation of penalty,such as the narrow scope of the crime of criminal fraud,the lack of negligent crime,the difficulty of subjective identification,the lack of qualification penalty,the non-science of the application of unlimited fine penalty,and so on.All these lead to the production and sale of counterfeit medicines in the process of practical application of the huge controversy.Based on the above problems,this paper is divided into five parts to discuss several dry problems in the crime of producing and selling counterfeit medicines in China.The first part first combs the development and reform of the criminal legislation of the crime of producing and selling counterfeit medicines in China,summarizes the present situation of the crime of counterfeit medicines in our country,and enumerates two typical cases for the later discussion.The second part mainly discusses what is the main legal interest and how to make the substantive judgment of the legal interest when the primary and secondary legal interest are in the crime of the production and sale of counterfeit medicines under the protection of dual legal interest.The third part mainly analyzes the two major problems of the subjective and objective aspects of the crime of producing and selling counterfeit medicines,discusses the definition of counterfeit medicines and the scope of the harm behavior,probes into the possible decriminalization of the production and sale of the behavior of "making counterfeit medicines",and further analyzes the subjective identification and crime forms of counterfeit medicines.The last part is to analyze the deficiency of the crime of producing and selling counterfeit medicines in the problem of penalty setting,and the lack of qualification penalty and the setting of unlimited fine penalty lead to the defects of penalty setting.The last part is to solve and improve the above problems of the response,the production and sale of counterfeit medicine crime of the criminal law system,from the improvement of the production and sale of counterfeit medicine crime conditions,the mechanism of crime and the allocation of penalties,in order to expect to respond to the judicial practice encountered in such difficult problems,Perfect the criminal law system for the crime of counterfeit medicine,and better guide the judicial practice work.