Research On The Application Of The Crime Of Producing, Selling And Providing Counterfeit Drugs Under The Background Of The Criminal Law Amendment (XI

"The crime of producing,selling,and using counterfeit drugs" is a traditional crime,not a new type of crime.However,this crime has almost never been absent in the previous revisions of the Criminal Law.The transition to behavioral crimes has also experienced a transition from natural crimes to legal crimes.The "Criminal Law Amendment(11)" has added the crime of supplying counterfeit medicines,unlike the publicly known "unapproved imported drugs",the drugs involved are mostly weight loss drugs and health-care drugs.Both the Drug Administration Law in 2019 and the Criminal Law Amendment(11)in 2021 have made corresponding amendments to drug-related illegal and criminal acts,although they have basically made up for the fact that "counterfeit drugs are not fake".Loopholes,but how to apply this crime in the context of the new law,there are still new problems.This article starts with the dilemma existing in the judicial application of the behavior object and behavior definition,distinguishes one by one and makes suggestions.First,on the issue of how to define "counterfeit medicine",this paper first analyzes the definition of the category of counterfeit medicines in the Drug Administration Law,and explains the vagueness of the definition.The Drug Administration Law of 2019 narrows the scope of counterfeit drugs,excluding some fake drugs from the category of counterfeit drugs,and some fake drugs are included in the category of counterfeit drugs due to their substantial harm,while Some counterfeit drugs appear in the form of prohibited drugs,but the concepts of counterfeit drugs and prohibited drugs have co-existed.In addition,the new law has also reconstructed the binary distinction between counterfeit drugs and inferior drugs,and the definitions of counterfeit drugs and inferior drugs.There has been competition and cooperation,and how to distinguish counterfeit drugs from prohibited drugs and inferior drugs is a new problem in judicial practice.In addition,the strictness of the definition of counterfeit drugs and the difficulty of proof in the Drug Administration Law have also raised higher requirements for judicial practice.On the issue of the identification of counterfeit drugs in the sense of "Criminal Law",this article first clarifies the legal benefits of counterfeit drugs in the sense of criminal law,and then analyzes the scope of counterfeit drugs in the sense of criminal law and the administrative law tendencies in the identification of counterfeit drugs in practice,and comments The "Criminal Law Amendment(11)" was adopted to delete the practice of "in accordance with the preceding regulations".This article believes that this approach does not mean that the definition of counterfeit drugs in the Drug Administration Law is rigidly decoupled from the definition of counterfeit drugs in the criminal law.Regarding the definition of counterfeit drugs,the "Drug Administration Law" should also be used as a reference,but not all of the "Drug Administration Law".Secondly,in terms of the implementation of crimes involving counterfeit drugs,this paper starts with the distinction between administrative lawlessness and criminal crimes,analyzes the viewpoints of the "quality" and "quantity" theories,and makes a distinction on how to apply the theories of quality and quantity to counterfeit drug crimes.make a suggestion.That is,the "quality" of the counterfeit drug-related behavior should be considered first,and if there is real harm,the "quantity" should be used as a consideration factor to distinguish whether the drug-related behavior is an administrative violation or a criminal crime.Crimes involving counterfeit medicines include production,sales,and provision of three modes of practice.The three modes have their own difficulties in confirming them in practice,such as "production of counterfeit medicines for export" and "counterfeit medicines purchased for sale","Medical institutions make medicines on behalf of patients" and how to make the distinction between administrative violations and criminal crimes under the background of the substantive tendency of counterfeit medicine identification.This paper believes that when interpreting the production,sales,and the new behavior of providing counterfeit medicines,both quality and quantity should be considered,and the principle of actual danger should be considered.Finally,there are two problems in the crime involving counterfeit medicines,the crime of "production,sale,and provision of counterfeit medicines" is over-applicable and difficult to commit the crime.Before the implementation of the "Drug Administration Law" in 2019,this crime has been criticized for its tendency to criminalize,but in the context of the "Drug Administration Law" restricting the scope of counterfeit drugs,this crime has appeared to be over-limited.ization problem.In practice,the sentences for crimes involving counterfeit drugs have been greatly reduced,some acts involving counterfeit drugs are acquitted in practice,and some acts involving counterfeit drugs are convicted of the crime of illegal business operation.In the problem of over-limitation caused by the narrowing of the scope of counterfeit drugs,on the one hand,it is necessary to exclude the scope of criminal regulation for behaviors that are not criminally punishable,and to decriminalize them;For the connection between crime and crime,the crime of producing,selling,and supplying counterfeit medicines is given priority.When the “drugs” involved in drugs meet the definition of food,the crime of producing and selling toxic and harmful products can also be considered,but the crime of illegal business operation must be used with caution.terms,and avoid improper expansion of bottom-line terms.In addition,the narrowing of the scope of counterfeit drugs does not mean that the issue of criminal acts involving counterfeit drugs has been resolved or that there is no need to discuss them.Although the elements of the "crime of producing,selling,and supplying counterfeit medicines" are more stringent,in practice,there are cases where counterfeit medicines are included in the crime of illegal business operation,including the production and sale of counterfeit medicines.Therefore,it is still necessary to improve the guilt mechanism for acts involving counterfeit drugs.Although the application of the guilt method with insufficient constituent elements is more practical in practice,the actual guilt should also be considered.