Research On The Legislative Perfection Of Production And Sale Of Inferior Drugs

Production and sale of inferior drugs is one kind of drug crimes cracked down by the Criminal Law of the People's Republic of China in order to maintain drug market safety.This crime is rarely seen in judicial practice.However,in 2018,the news of“flawed vaccines” produced by Jilin Changchun Changsheng Bio-Technology Cooperation(hereafter refers to Changchun Changsheng)made it come into public view again.The illegal acts involved in the production and sale of DPT and rabies vaccine by Changchun Changsheng were revealed by the news media,caught the attention of people from the whole nation and raised wide public concern.The case also started heated discussions on the criminal offenses to be convicted among the law community.Some law experts argued that the production and sale of fake drugs were involved in this case according to reports by news media and facts unveiled by relevant regulators.Other experts believed that the company was convicted of the production and sale of inferior products.Still others held that the company endangered public safety in a dangerous manner.However,both the public security departments and the Procuratorate started the investigation and prosecution under the charge of production and sale of inferior drugs.Until now,the case is still in the process of court trial.By assuming Changchun Changsheng being convicted of production and sale of inferior drugs,this paper investigates into the legal perfection of production and sale of inferior drugs in judicial practice by referring to the discussions on the possible crimes involved in the case by legal experts.The legislative regulation of production and sale of inferior drugs can be found in the first section “production and sale of inferior products” of Chapter three “Disruption to the socialist market economy order” in the Criminal Law,i.e.Article 142.Then the article on this crime was further revised.In1997,this crime was separated from the crime of production and sale of fake products.However,the article on the crime of production and sale of drugs of inferior quality has never been revised since 1997.There are few updates to judicial interpretations due to the revision of articles on other drug-related crimes.Meanwhile,the legislative regulation on drug crimes have been further improved with the development of the times.Since the legislative regulation of production andsale of inferior drugs,there have been few judicial practices.This paper will first briefly review the Changchun Changsheng case,then investigates into the crime of production and sale of inferior drugs and makes a comparative analysis on the legislative circumstances in China and some foreign countries.Then,on the basis of explaining the constitutes of production and sale of inferior drugs,the paper analyzes the definition of production and sale of inferior drugs.The paper also discusses the differences between production and sale of inferior drugs and production and sale of fake drugs by referring to similar vaccine cases.Meanwhile,by referring to the problems in the judicial practices of production and sale of inferior drugs,the paper discusses the shortcomings in legislation such as the unreasonable description of criminal acts on consequential offense,the omission of qualifications punishment,doubts in judicial application on sales amount and the definition of administrative penalty and criminal punishments.It can be argued that those problems are possible causes for the few updates on this crime.Finally,considering the problems in legislation,this paper gives some suggestions on the legislative perfection of production and sale of inferior drugs.Those suggestions include deleting the regulation on the case of “serious harm to physical health” with the purpose of changing consequential offense to damage offense in order to crack down on crimes and maintain drug market safety,changing “sales amount” to “the value of goods” in order to define the amount of money that can be used as the threshold of conviction and sentencing,increasing the sum of penalty,coordinating administrative law enforcement and criminal judicature,adding qualifications punishments and improving legislative regulation of this crime.It is hoped that the legislation will be more scientific and reasonable and unity can be achieved between legislation and judicial practices,benefiting the drug safety of our country in the long run.