| From November 1,2015,the Criminal Law Amendment(Nine)of the People's Republic of China(hereinafter referred to as "Criminal Nine")has been formally implemented.The paragraph 1 of the Article 290 of Criminal Law—"the crime of gathering crowds to disrupt social order"was amended as follows:"gathering crowds to disrupt social order,the cases are serious,making work,production,business,teaching,scientific research and medical treatment cannot be carried out and causing serious losses,the ringleader shall be sentenced to imprisonment that not less than three years but not more than seven years and the other active participants will be sentenced to imprisonment that not less than three years,criminal detention,control or deprivation of political rights." That is,add the "medical" into the article,which means that"medical institutions"belong to the"social order"thenceforth.It also marks that the"medical disturbance" is formally regulated by Criminal Law and it is clear that the criminal means should be used to crack down "medical disturbance"from the legislative point of view.After the "medical disturbance" is regulated by Criminal Law,our country has successively promulgated the relevant laws and regulations and judicial interpretations.To a certain extent,it has cracked down"medical disturbance"and alleviated social contradictions.However,there are also various disputes injudicial practice,including the identification of the subj ect of crime,the standard of conviction and sentencing,etc.Moreover,the regulation of Criminal Law is not a panacea for "medical disturbance"."Medical disturbance" is the product of further intensification of the contradiction between doctors and patients,the reasons for its formation are complicated,only "the crime of gathering crowds to disrupt social order"cannot cover all of it."Criminal penalty of medical disturbance"by Criminal Law refers to identify the"medical disturbance" as the behavior of gathering crowds to disrupt social order,so this thesis mainly focuses on "the crime of gathering crowds to disrupt social order" of"medical disturbance".This paper takes November 1,2015-the time of "criminal penalty of medical disturbance"as the node,selects a period of six years from the first three years to the last three years,that is,from January 1,2013 to December 31,2018(there are only 2 months from November 1 to the end of the year,so,the period from January 1 to October 31 can be considered as one year),searches for the relevant cases in Pkulaw,and then,carries out manual search one by one and a total of 174 cases are obtained finally.There are 86 cases before the time of "criminal penalty of medical disturbance" and 88 cases after it.The case data has the characteristics of comprehensiveness and completeness.This paper is divided into four parts.The first part is mainly to sort out the relevant laws and regulations that regulate the behavior of disturbing the medical order,analyze the characteristics and development rules.The second part mainly studies the current situation of judicial precedent.Firstly,174 cases are sorted out and summarized in order to grasp "the crime of gathering crowds to disrupt social order" of "medical disturbance" integrally.Secondly,focus on the current situation of judicial precedents after the time of "criminal penalty of medical disturbance".Including the cause of the case,the details of the case,the disputes between the prosecution and defense,the trial standards,the basis of the judgment,the result of the judgment and whether there is incidental civil compensation or not.According to the characteristics of each case,analyzes the whole regular pattern and explores the existing problems in the current judicial practice.On this basis,the third part mainly studies the problems injudicial practice.In this part,the paper closely combines the cases and related laws and other theories,systematically studies the constitutive elements of crime,the determination of crime and non-crime,the boundary between this crime and that crime,the standard of filling and sentencing,etc.And then,summarizes the general law,puts forward the corresponding applicable standard of Criminal Law.The fourth part mainly puts forward some countermeasures and suggestions to perfect "the crime of gathering crowds to disrupt social order" of "medical disturbance". |
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