The four elements of the crime of illegal practice of medicine

(1) The object elements of the crime of illegal practice of medicine are the state's management system of medical institutions and the life and health safety of the public. In order to regulate the behavior of China's medical institutions and their practitioners, and to safeguard the public's life and health, the state has formulated a series of medical and health care management systems to safeguard and promote the healthy development of China's medical and health care industry. The illegal practice of medicine not only disrupts the well-established order of medical and health care management, but also often results in poor quality of medical services due to the fact that the illegal practitioners do not possess the basic conditions for practicing medicine, and at the same time infringes on the physical health and safety of the lives of the people who visit the medical institutions. (ii) Objective elements first, there must be unauthorized medical activities. Medical activities mainly refer to diagnosis and treatment, that is, through a variety of tests to make a diagnosis of the disease, borrowing drugs, instruments and surgery to eliminate the disease, alleviate the condition, relieve pain, prolong life, improve the pathological or physiological condition of the activities. Unauthorized medical activities are mainly manifested in the following forms: (1) the use of witchcraft, feudal superstitions to practice medicine. Most of the actors do not understand the medical profession, some slightly understand a little medical knowledge, mainly by burning incense, chanting, palmistry and various feudal superstitions to fool the patient. (2) Using qigong to practice medicine. Qigong has certain curative effects on certain diseases, but some people do not understand qigong at all, but claim that their qigong is so good that they are licensed to practice medicine and cheat people out of their money. (3) Illegal medical activities using modern instruments. For example, using computers to diagnose people's conditions and issue prescriptions. (4) Non-medical organizations exceeding the scope of services to carry out medical activities. Such as some do not have the qualification of surgical plastic surgery beauty hospital, unauthorized medical cosmetic surgery activities. (5) People with certain medical knowledge unauthorized clinics, medical activities. These people generally after a certain amount of medical training, some have been practicing medicine for many years, and some even once in the legal medical institutions in accordance with the law to carry out medical activities, but in the unauthorized operation of the clinic during the period of no medical practitioner's license or the clinic opened by the medical institutions do not have a "medical institutions practice license". (6) the use of illegal means of marketing products. Such as some manufacturers to hire people without a physician's license in the public **** occasion to the identity of the doctor to introduce the product, and for people to diagnose the condition of the prescription, recommending patients to use the manufacturer's products. Secondly, unauthorized medical activities must reach the level of "seriousness of the circumstances". The "seriousness of the circumstances" stipulated in article 336, paragraph 1, of the Criminal Law of China is a criminalizing circumstance, not a mere sentencing circumstance. However, the criminal law provisions do not specify which behaviors are "serious", which brings certain difficulties to judicial practice, but the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of the Law in the Trial of Criminal Cases of Illegal Practicing of Medicine (adopted by the Trial Committee of the Supreme People's Court at its 1446th meeting on April 28, 2008), which was approved by the Supreme People's Court at its December 2016 meeting, is not applicable to the criminal cases of illegal practicing of medicine. Adopted at the 1446th meeting of the Trial Committee of the Supreme People's Court on April 28, 2008, and amended in accordance with the Decision of the Supreme People's Court on Amending the Interpretation on Several Issues Concerning the Specific Application of Laws in Trial of Criminal Cases of Illegal Medical Practices adopted at the 1703rd meeting of the Trial Committee of the Supreme People's Court on December 12, 2016) provides an explanation of conviction and the "aggravating circumstances" of the case: Article 2 shall be recognized as "aggravating circumstances" as stipulated in Paragraph 1 of Article 336 of the Criminal Law if any of the following circumstances applies: (1) causing the patient to suffer from mild disability or organ or tissue damage leading to general functional impairment; (2) causing the spread or epidemic of Category A infectious diseases or the risk of such spread or epidemic; (3) using counterfeit or substandard drugs or sanitary materials that do not conform to the standards prescribed by the State; (4) using a person who has been convicted of the crime of practicing illegal medicine; and (5) using a person who has been convicted of the crime of practicing illegal medicine. hygienic materials and medical devices that do not meet the standards set by the state, enough to seriously jeopardize human health; (d) illegal practice of medicine by the administrative department of health after two administrative penalties, and then again illegally practicing medicine; (e) other cases of seriousness of the circumstances. This is a major step forward in legislation, specific reference can also be made to the "Medical Practitioners Law" and combined with judicial practice. (C) the main elements (a) did not obtain or by illegal means to obtain the qualification of physicians engaged in medical activities; (b) was revoked by law during the physician's license to engage in medical activities; (c) did not obtain a rural doctor's license to engage in rural medical activities; (d) family midwives to carry out medical acts other than family midwifery. The subject of the crime, i.e., a person who has not obtained a license to practice medicine, includes Chinese, foreigners and stateless persons, and the unit does not constitute the crime. One must have obtained a license to practice medicine and practice medicine in a medical institution that has obtained a license to practice in medical institutions, in accordance with the physician's own registered scope of practice, location, type and the approved registration of the medical institution's subject area to practice medicine in order to be a person who has obtained the qualification to practice medicine. Practicing Physician Law" on the acquisition of licensed medical practitioner is clearly stipulated: the law came into force after the qualification of licensed medical practitioners, must pass the national qualification examination for physicians, and upon application to obtain the title of licensed medical practitioner or assistant medical practitioner; before the effective date of the law, to obtain the title of medical professional and technical titles and medical professional and technical positions of the personnel, by the institution to report to the health administrative department above the county level to determine the qualification of the corresponding physician. (c) The qualifications of medical practitioners are recognized by the health administrative departments above the county level. For the opening of medical institutions, according to the State Council, "Medical Institutions Management Regulations" and the Ministry of Health, "Medical Institutions Management Regulations," the provisions of the administrative department of health at or above the county level need to be assessed and examined, and issued a license to practice or registration. Therefore, the case officer in handling such cases, not only to pay attention to their own whether the "physician's license" and its scope of practice, but also to pay attention to their own medical institutions whether the "medical practice license" and its approved diagnostic and therapeutic subjects are comparable, or else, there is a risk of becoming the main body of the illegal practice of medicine. This is because, if the physician exceeds the scope of practice of its registration to practice medicine (except for emergency special circumstances) there are serious deficiencies in the relevant medical knowledge and skills, such as a dentist to do extracerebral surgery, the consequences are imaginable. And beyond the medical institution approved diagnosis and treatment subjects, means that the medical institution does not have the relevant subjects of diagnosis and treatment personnel, facilities, equipment, which can not guarantee the safety of the lives of patients. Such as only dermatology subjects of medical institutions to do heart surgery, because they do not have the appropriate diagnosis and treatment of personnel, facilities, equipment not only surgery can not guarantee safety, once an emergency occurs, there is no way to implement the patient's life and health of patients to the detriment of life and health, which is the law enforcement officers must pay attention to the problem. Here is another issue that should be noted is that China's "Medical Practitioners Law" on the geographical area of the doctor's practice is not clearly defined, but some areas of the medical institutions set up to apply for special provisions, which to a certain extent limits the scope of the licensed medical practitioners. In addition, for the medical institutions or practitioners who have obtained the "medical institution practice license", because of exceeding the approved scope of business to engage in medical activities and cause serious consequences, to deal with the crime of medical malpractice, because the perpetrator has the qualification of practicing medicine, in line with the requirements of the subject of the crime of medical malpractice; the other view should be dealt with the crime of practicing medicine illegally, because , although the doctor has the qualification to practice medicine within the scope of the approved registration, but beyond the scope of the practice of medicine, and other people illegally practicing medicine is not essentially different: the perpetrator, although the qualification of the physician, but intentionally beyond the scope of authority and ability to engage in medical activities, the subjective fault manifested itself as intentional rather than negligence, which is one of the constituent elements of the crime of medical malpractice, subjectively manifested in negligence, there is a strict distinction between the subjective elements of medical malpractice is strictly different. (D) subjective elements of this crime in the subjective aspect of the manifestation of intent. The perpetrator of the patient casualty results in the existence of indirect intentional guilt rather than operational negligence. Because, in the cognitive factors, the perpetrator of their own lack of medical skills and the ability to control the development of the disease is known, but also the patient in the lack of effective and timely treatment will be disabled until death is known, so it is not negligent negligence; in the will factor, the patient's disability, death to take the indifference to the indulgence of the attitude of letting it be. The subjective aspect of the crime of illegal practice of medicine has behavioral intent, rather than the crime of direct intent, that is, knowing that they do not have the qualification to practice medicine, still engaged in medical activities. However, the perpetrator of the consequences of causing the death of the patient, physical health damage, may be negligent, may also be indirectly intentional, that is, it should foresee the illegal practice of medicine may cause the death of the patient, the serious consequences of injury, because of negligence and carelessness did not foresee or have foreseen but gullibly believe that it can be avoided, or already foreseen the possibility of the consequences of the above and let the harmful results occur. Another important element of the subjective character of the elements of the crime is the purpose of the crime. Illegal practice of medicine does not take profit-making as an element.