A Study On The Criminal Law Recognizance Of Fake Drugs

With the broadcast of "Dying to Survive" in July 2018,the discussion on the guilty or not guilty of producing and selling fake drugs has reached a climax.The criminal law academic circle also frequently voiced,for the "fake drugs" that will not cause harm to people’s life and health but are recognized for violating the drug administration law,is it worth using the means of criminal law to convict and sentence them? On August 26,2019,the newly revised Drug Administration Law was passed,in which four cases of "according to fake drugs to punish" were deleted,which seemed to respond to the query that "fake drugs" are not fake drugs.On December 28,2019,the Shanghai vaccine version of "drug God" case ushered in a change of sentence.The recognition standard of fake drugs "imported without approval due to approval" was deleted by the drug administration law,and the criminal suspect was sentenced to smuggling crime,with the penalty greatly reduced.The trend of the "drug God" series cases seems to suggest that whether the "fake drugs" are identified or denied,they are all based on the consideration of the recognition standards in the drug administration law.The crime of producing and selling fake drugs adopts the form of "blank crime" to stipulate that the "fake drugs" referred to in this article are the fake drugs mentioned in the drug administration law.Therefore,people will wonder whether the identification of "fake drugs" in the crime of producing and selling fake drugs depends on the identification of fake drugs in the drug administration law?This paper will answer the question from two aspects: on the one hand,to explore the relationship between criminal law and administrative law,what standards should they follow in judging the illegality? On the other hand,starting from the criminal law itself,looking for the legal interests protected by the crime,what kind of judgment standard should we adhere to when there are conflicts in multiple legal interests? The whole paper consists of four parts:The first part discusses the judicial present situation of "fake medicine".This paper introduces the current criminal and administrative legislation related to counterfeit drugs in China,and introduces some representative cases in criminal justice practice.Through the above introduction,the problems faced by the identification of "fake drugs" in judicial identification are brought out: firstly,fake drugs cause moral problems,even if the law is amended,it is also difficult to escape the formal identification standard of fake drugs.Secondly,after the judicial recognition by the administrative organ,the independent review of the judicial organ is challenged.Thirdly,although the revision of the law in essence has brought about a change of judgment in the vaccine version of "drug God" case,it has also strengthened the wrong understanding that criminal law’s recognition of "fake drugs" completely depends on the pre law.The second part discusses the basic position of the identification of "fake drugs",that is to say,we should adhere to the position of qualitative distinction and illegal pluralism in the judgment of secondary illegality.Based on this position,this paper discusses the influence of the judgment of administrative illegality on the criminal offence in the specific situation: when the current legislation is inconsistent with the trial,the former law should be judged according to the principle of "old and light";in judicial practice,although the administrative organ can transfer the case to the judicial organ when encountering the case suspected to constitute a criminal offence,however,the judicial organ should insist on independent judgment for the whole case.At the same time,it is clear that although we should adhere to the independent judgment of the judiciary when entering the crime,the absence of administrative license or administrative "illegal" should be ruled out based on the principle of national prediction possibility.The third part discusses the determination of legal interest in the crime of "fake medicine".It is clear that the crime not only protects the market order,but also the right to life and health.However,when there are multiple conflicts of legal interests,the right to life and health should have an absolute priority.In judicial practice,this crime is regarded as an action crime,which is for the protection of legal interests of market order.The legal interest of life and health should not only include the life and health of specific individuals,but also include the protection of the life and health of the unspecified majority of people,that is,the abstract dangerous crime.Finally,when the legal interest of market order conflicts with the legal interest of life and health,the legal interest of life and health should have the priority,and in the application of law,the application of penalty should also be based on whether it infringes on the legal interest of life and health,otherwise only the application of administrative law can achieve social effect.The fourth part discusses the out crime path of "fake medicine" crime.Only by putting the abstract theory of criminal law to the specific path of crime,can the practical value of the theory be realized.In judicial practice,the crime is recognized as a crime of conduct,so it has the background of "presumption of guilt" when the administrative organ transfers it.Therefore,it is more helpful to analyze the causes of crime resistance in a comprehensive way by putting the possible path of crime in each stratum into the three stratum crime theory system.At the stage of constitutive requirements: firstly,the amendment of the prepositional law makes the administrative illegal act lose the premise of criminal violation,and the crime will come out because it does not constitute "fake medicine";secondly,in the absence of actual harm crime,the crime will come out through the counter evidence of abstract dangerous crime.In the stage of Illegality: firstly,in the case of patient’s health,the crime can be removed through the victim’s commitment,but only the commitment of all patients can eliminate the risk of infringing the market order;secondly,the crime can be removed through the proviso and the supporting provisions of judicial interpretation,with "the situation is obviously slight,and the harm is not serious".For the criminal law recognition of "fake drugs",the idealized appeal is that the judicial organ should adhere to the criminal law standard for independent judgment,but in the judicial practice,it is difficult to practice according to the standard violation theory.Therefore,after discussing the adherence to the pluralism of law breaking and the choice of the conflict of legal interests in the crime of "fake medicine",this paper bases on the path of crime that can be directly used in judicial practice,and makes a flow chart of the path of crime within the framework of three-level theory,so as to realize the value of the criminal law of "fake medicine" in judicial practice.