Research On The Judicial Determination Of The Crime Of Producing,Selling And Providing Counterfeit Drugs

Medicine is a kind of material that can treat and regulate body function and maintain people’s health at a normal level.Its safety and quality issues are very important for people’s life safety.No matter when or where,it can not be taken lightly.However,in real life,the successive Ni Haiqing case,Lu Yong case and Changchun Changsheng false vaccine case are constantly hitting people At the same time,it also exposed the unreasonable setting of the scope of counterfeit drugs in our country’s law,which hindered the judicial organs in the application of the law.In view of the problems in the above judicial practice on drug safety,the new drug administration law was passed in August 2019,which redefined the specific scope of fake drugs and inferior drugs,excluding the category of drugs that violate administrative procedures but are beneficial to people’s health.However,the revised provisions on fake and inferior drugs are still unclear,and there is conceptual concurrence in specific cases,which leads to the failure of drug safety It is difficult to distinguish between fake medicine and inferior medicine in practice.In December 2020,based on the reflection of Lu Yong’s case,legislators adjusted the content of the crime of producing and selling counterfeit drugs through the amendment to the criminal law(11).Firstly,the determination of counterfeit drugs was deleted according to the provisions of the drug administration law,which caused controversy on whether the determination of counterfeit drugs in this crime can continue according to the drug administration law.Secondly,the crime added the illegal provision of counterfeit drugs by the personnel of drug users The provisions of the drug law expand the scope of punishment of this crime and provide the legal basis for the judicial organs to punish the illegal provision of counterfeit drugs by medical institutions.However,it is necessary to further clarify the issues of "drug users",subjective "knowledge",and what charges are applicable to this section.The Supreme People’s court and the Supreme People’s Procuratorate pass the relevant regulations on February 26,2021 In the implementation of the supplementary provisions of the criminal law of the People’s Republic of China(7),the charge of the crime of producing and selling fake drugs was revised to the crime of producing,selling and providing fake drugs.In view of the adjustment of this crime through a series of national legislation,these legislative adjustments will inevitably produce new problems of law application in judicial application.Therefore,after the amendment to the criminal law(11),this paper analyzes and expounds some difficult problems in the judicial determination of the crime of producing,selling and providing fake drugs from five aspects,including the legislative overview of the crime,legal interests,identification of fake drugs,subjective and objective aspects,and the relationship between the crime and other charges,so as to clarify the difficult problems of the crime and provide reference for the judicial practice It is beneficial to apply this crime.Therefore,this paper is divided into four partsThe first part of this paper is the legislative overview of the crime of producing,selling and providing counterfeit drugs.First of all,it combs the legislative development of the crime of producing,selling and providing counterfeit drugs in China,analyzes the changes and development of criminal law legislation and administrative legislation,and points out the shortcomings of the legal provisions and the reasons for amendment.The second part identifies the legal interests of the crime of producing,selling and providing counterfeit drugs.In the theory of criminal law,there are different voices about the specific content of legal interest.This paper summarizes and lists these different views,and then analyzes them.Finally,the author gives his own views and reasons on legal interest.The third part of the production,sale,supply of counterfeit drugs to identify the crime of counterfeit drugs.This paper first expounds the judicial status of the identification of counterfeit drugs in this crime,then analyzes the distinction between counterfeit drugs and inferior drugs in the new drug administration law,and puts forward my own views.Finally,it puts forward my own views on how to link up the administrative and criminal identification of counterfeit drugs.The fourth part of the subjective and objective aspects of the crime identified.The objective aspect includes the judicial cognizance of production behavior,sales behavior and provision behavior.In view of the disputes on the cognizance of objective aspect behavior in practice,this paper confirms the production behavior,sales behavior and provision behavior through the interpretation method of criminal law,relevant judicial interpretation and cases.Finally,the author gives his own views.There are different views on the subjective aspect of this crime.The author summarizes and lists these views,then analyzes and comments,and finally puts forward his own views and reasons,so that we can have a better understanding of the constitution of this crime.Finally,to identify the subject of the crime,due to the amendment to the criminal law(11),the act of providing fake drugs has been added.The subject of the crime of providing fake drugs needs to be further clarified,so that it can be distinguished from the subject of the crime of producing and selling fake drugs.The fifth part analyzes the relationship between the crime of producing,selling and providing counterfeit drugs and related crimes.This paper discusses the distinction between the crime of producing,selling and providing counterfeit drugs and the crime of producing,selling and providing inferior drugs,between the crime of fraud and the crime of endangering public security by dangerous means,as well as the connection and difference between this crime and the crime of producing,selling inferior products and illegal business operation.In practice,the crime of producing,selling and providing counterfeit drugs is easily confused with other crimes in the criminal law,so it is necessary to clarify the boundaries between the crime of producing,selling and providing counterfeit drugs and other crimes.This paper points out and analyzes the difficulties in distinguishing this crime from other crimes from the perspective of constitutive elements,combined with judicial interpretation and cases,and finally the author gives some solutions to these difficulties I will never put forward my own opinions.