What is the crime of illegal practice of medicine, the crime of illegal practice of medicine and the crime of medical malpractice of

I. Characteristics of the crime of illegal practice of medicine (a) object characteristics of the crime of illegal practice of medicine the object violated is the state's management system of medical institutions and the public's life and health safety. In order to regulate the behavior of China's medical institutions and their practitioners, to protect the public's life safety and health, the state has formulated a series of medical and health management system to protect and promote the healthy development of China's medical and health care. Illegal practice of medicine not only disrupts the good medical and health management order that has been established, but also often results in poor quality of medical services due to the fact that the illegal practitioners do not have 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 Characteristics The objective aspect of the crime is manifested in the fact that the perpetrator engages in unauthorized medical activities under serious circumstances without obtaining the qualification to practice medicine. First of all, there must be unauthorized medical activities. Medical activities mainly refer to diagnosis and treatment, that is, the diagnosis of diseases through various examinations, the borrowing of drugs, instruments and surgery and other methods to eliminate diseases, alleviate the condition, alleviate pain, prolong life, and 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 know a little bit of medical knowledge, mainly by burning incense, chanting, palmistry, and all kinds of feudal superstitions to fool people. (2) Using qigong to practice medicine. Qigong has certain curative effects on certain diseases, but some people do not know qigong at all, but claim that they are good at qigong, practicing medicine under a license, and cheating 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 its unauthorized clinic during the period of no medical practitioner's license or the clinic opened by the "medical institutions do not have a license to practice". (6) The use of illegal medical practice means to promote products. Such as some manufacturers to hire people without a medical license in the public **** occasion to the identity of the doctor to introduce products, and diagnose people's conditions, prescriptions, recommending patients to use the manufacturer's products. Secondly, unauthorized medical activities, the behavior must reach the degree of "seriousness". The "aggravating circumstances" stipulated in Article 336 (1) of the Criminal Law of China is a criminalization circumstance, not a mere sentencing circumstance. But the law does not specify which behavior is "aggravating circumstances" behavior, which brings certain difficulties to the judicial practice, the urgent need for judicial interpretation. We believe that, with reference to the "Medical Practitioners Law" and in conjunction with judicial practice, the following situations can be considered as "aggravating circumstances": (1) without basic medical knowledge, but posing as a doctor for others to diagnose and treat, delaying the timing of the serious consequences; (2) the medical conditions seriously do not meet the standards set by the state, resulting in serious consequences; (3) illegal practice of medicine by the administrative authorities of the State Council, the State Council, the State Council, the State Council, the State Council, the State Council and the State Council. (3) Continuing to engage in illegal medical practice after having been administratively punished several times for illegal medical practice; (4) Forging, altering, selling, transferring, or lending the "license to practice in a medical institution", causing serious consequences; (5) Seriously violating the rules and regulations of the health administration or the technical standards of medical care, and engaging in other illegal behaviors towards the patients during the process of medical care; ( (6) Employing a person who has not obtained a medical practitioner's license to engage in medical and health care technology work resulting in serious consequences; (7) Setting its own collection standards, indiscriminately prescribing medicines, profiting from illegal benefits in a large amount, etc. (C) subject characteristics of the subject of the crime is a special subject, that is, not qualified to practice medicine, including Chinese, foreigners and stateless persons, the unit does not constitute the crime. Then how to be qualified to practice medicine? In our opinion, must have obtained the license to practice medicine and in the medical institutions that have obtained the license to practice medical institutions to practice medicine is to have obtained the qualification to practice medicine. Practicing Physician Law" on the acquisition of licensed medical practitioner is clearly stipulated: the law came into effect after the licensed medical practitioner qualification, must pass the national qualification examination, and by applying for the title of licensed medical practitioner or assistant medical practitioner; before the effective date of the law, 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. For the opening of medical institutions, according to the provisions of the State Council's "Regulations on the Management of Medical Institutions" and the Ministry of Health's "Regulations on the Implementation of the Regulations on the Management of Medical Institutions", it is also necessary to go through the examination and review of the administrative department of health at or above the county level, and to be issued with a license to practise or to register. Therefore, the medical industry practitioners, not only should pay attention to whether I have a physician's license, but also to pay attention to their own medical institutions have a "medical institution license", otherwise, it may become the subject of the illegal practice of medicine. Here there is a need to pay attention to the problem 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 practicing physician. For example, the Shanghai Municipality in 1997 announced the "Shanghai Municipal Medical Institutions Management Law" Article 6 and Article 11: "the city of medical institutions to implement the licensing system, without permission, no unit or individual shall not engage in the practice of medicine"; "apply for the establishment of an individual (including partnership) clinic or individual Nursing station, in addition to the conditions stipulated in Article 10, items 2 to 4 of this Law, shall also have the following conditions: I. Have a household registration in the city; II. Have been engaged in clinical work in the same specialty for more than five years after obtaining the corresponding qualification of physicians or nurses according to the scope of practice applied for; and III. Are not in the workforce." Obviously, even if the foreigners have obtained a physician's license in their home country, but if they open a clinic in Shanghai, they will not be able to obtain a "license to practice medicine" and not have the qualification to practice medicine in Shanghai, and may become the subject of the crime of illegal practice of medicine. We believe that such a provision not only fails to combat the illegal practice of medicine, but also restricts the normal flow of practicing physicians, and should be amended. In addition, if a medical institution or a practicing physician who has obtained a "license to practice medicine" exceeds the approved scope of business and engages in medical activities resulting in serious consequences, will the perpetrator be dealt with according to the crime of practicing medicine illegally? In this regard, some people think that the crime of medical malpractice should be dealt with, because the perpetrator has the qualification to practise medicine and meets the requirements of the subject of the crime of medical malpractice; some people think that the crime of unlawful practise of medicine should be dealt with because, although the doctor has the qualification to practise medicine within the scope of the approval and registration, he exceeds the scope of his practice of medicine, which is not fundamentally different from the unlawful practise of medicine by other people: the perpetrator, although he has obtained the qualification of a medical practitioner, deliberately exceeds the scope of his authority and ability to engage in medical activities. scope, engaged in medical activities, subjective fault manifested as intent rather than negligence, which is strictly different from one of the constituent elements of the crime of medical malpractice, which is subjectively manifested as negligence. We agree with the second view. (d) Subjective characteristics of the crime of illegal practice of medicine, the subjective aspect of the crime of illegal practice of medicine with behavioral intent, rather than the crime of direct intent, that is, knowing that they do not have the qualifications to practice medicine, still engaged in medical activities. However, the perpetrator of the consequences of 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 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 characteristics of the elements of the crime is the purpose of the crime. So, in terms of the purpose of the crime, is profit-making required? The new criminal law does not explicitly stipulate this question. However, judging from judicial practice, illegal medical practitioners are generally profit-oriented, and according to the legislative intent of Article 336 of the Criminal Law of China, when stipulating the penalties, the article stipulates that those who commit the crime of illegal medical practitioners shall be punished with a fine in addition to, or separately from, the fine, as one of the additional penalties, whose sanctioning object is mainly the crime of profit-oriented. Therefore, we believe that, from the point of view of the purpose of the crime, the crime of practicing medicine illegally should have the element of "for the purpose of making profit". Second, the crime of illegal practice of medicine *** with the crime *** with the crime refers to more than two people *** with the intentional crime, this is China's criminal law, article 25, paragraph 1 of the *** with the crime of the definition, according to this definition, constitute the *** with the crime must have the following elements, one is the subject of the crime must be more than two people, the second objective aspect of the criminal behavior must be *** with the crime, and the subjective aspect of the subjective aspect must be have *** same criminal intent. According to the above analysis, we can see that **** the same crime only exists in the direct intent and indirect intent two types of culpable forms, in the negligence crime does not exist **** the same crime. As mentioned earlier, the subjective characteristics of the crime of illegal practice of medicine are manifested in direct intent, while the consequences of causing the death of the patient and the impairment of his physical health are indirectly intentional or negligent. In general, *** same crime can appear in any category of intentional crime, so in the illegal practice of medicine crime, in what circumstances may appear *** same crime? We may wish to analyze the following cases: one is to employ people without a license to practice medicine, for the employed as the subject of the crime of illegal practice of medicine, since there is no doubt, but for the employer is not necessarily constitute the crime of illegal practice of medicine? This should be dealt with in different situations: know that the employed does not have the qualification to practice, still employed, for the eligible subject, but due to be employed by the deception (such as fake medical license) and employing people without the qualification to practice medicine, it should not be illegal to practice medicine according to the crime of punishment, because it does not comply with *** with the crime of the subjective elements, that is, no *** with the intention. Secondly, how should the illegal practice of clinics by several persons in partnership be dealt with when the act of diagnosis and treatment by one of them alone leads to serious consequences? We believe that the other partners should be dealt with as **** with the crime. Because the number of people to open a clinic, with *** with the criminal intent, although the behavior of the other partners did not directly cause serious consequences, but the existence of illegal clinics for the illegal practice of medicine to create the conditions for the occurrence of the results of the crime has an inescapable responsibility. Of course, for the number of punishment should be divided responsibility, that is, for which the person in charge and the direct perpetrator to the main offender, and for other people generally to accessory to the punishment. Thirdly, the loan (rent), transfer, sell "medical institutions practice permit", others use the permit for the illegal practice of medicine, resulting in serious consequences, for the loan (rent), transfer, seller can be punished for the crime of illegal practice of medicine? We believe that the crime of practicing medicine should be dealt with as a *** crime. The reason is: the perpetrator for others do not have a legal license, and the use of their licenses for the illegal practice of medicine this fact is known, and the perpetrator's behavior to make others of the illegal practice of medicine is more covert, so that others of the illegal practice of medicine is more convenient, and the possibility of harm to society is also greater. However, we should see, the behavior of the perpetrator of the illegal practice of medicine of others generally only play a supporting role, it is appropriate according to the accessory to light or mitigated punishment. Fourth, for relatives and friends for the illegal practice of medicine funded, free of charge to provide premises, whether it constitutes the illegal practice of medicine **** offender? This issue should be treated separately and cannot be generalized. In practice, relatives and friends provide material assistance to illegal medical practitioners, and often do not know what conditions should be in place to open a medical institution, and there is no provision in the law that provides for such a situation, relatives and friends have the obligation to review. Generally speaking, relatives and friends only help in the general sense, do not have profit-making or other illegal purposes, and subjectively do not have the same criminal intent, so it is not appropriate to deal with the crime of practicing medicine illegally as a *** offender. However, for those who know that the illegal medical practitioners do not have the "two certificates", but still provide facilities for them, resulting in serious consequences, they should be punished as accessories to the crime of illegal medical practice. Fifthly, how should nurses and odd-job workers, such as accountants and security guards, who work in illegal medical institutions be dealt with? This mainly depends on the aforementioned personnel subjectively with others have *** with the same intention, that is, whether they know that the medical institutions in which they do not have a "medical practice license". If you know that the institution does not have a "license to practice medicine", it means that the above people have at least known that the institution is in an illegal state, and its behavior objectively to the serious consequences of the role of help, naturally, should be punished as an accessory to the crime of illegal practice of medicine. Of course, for those who join in for a shorter period of time and play a smaller role in causing serious consequences, it is only appropriate to deal with them according to the general illegal behavior, and it is not necessary to pursue criminal responsibility. Third, the boundaries between the crime of illegal practice of medicine and other crimes. (a) The boundaries between the crime of illegal practice of medicine and the crimes of intentional homicide, intentional injury and negligence causing death and negligence causing serious injury The objective characteristics of the crime of illegal practice of medicine have a variety of manifestations, but one of the harmful results is to cause injury or death of the person who attends the clinic, which is the same as the consequences of the crimes of intentional homicide, intentional injury and negligence causing death and negligence causing serious injury. Prior to the revision of the Criminal Law, as China's Criminal Law did not provide for the crime of illegal practice of medicine, illegal practice of medicine was generally punished in accordance with the latter four crimes. Therefore, in practice, the crime of illegal practice of medicine and the above four crimes are easily confused, especially for the illegal practice of medicine without a fixed place, infrequent illegal practice of medicine, especially difficult to identify. So what is the difference between the crime of illegal practice of medicine and the last four crimes? The difference is mainly manifested as follows: (1) the object is different. The object of the crime of illegal practice of medicine is the state's management system of medical institutions and the life and health safety of the public, while the object of the latter four crimes is only the life and health rights of specific citizens. (2) The objective aspects are different. The crime of illegal practice of medicine occurs in the process of illegally engaging in medical activities, while the latter four crimes generally occur not in the process of medical activities. (3) The subject of the crime of illegal practice of medicine is a special subject, limited to those who are not qualified to practice medicine, while the subject of the latter four crimes is a general subject. (4) The subjective aspects are different. The mental attitude of the perpetrator of the crime of illegal practice of medicine towards serious adverse consequences is negligent or indirectly intentional, while the subjective aspect of the crime of intentional homicide and intentional injury is direct intentionality or indirect intentionality; and the subjective aspect of the crime of causing death by negligence and the crime of causing serious injury by negligence is negligence. (B) the boundaries of the crime of illegal practice of medicine and the crime of medical malpractice illegal practice of medicine and the crime of medical malpractice both belong to the crime of endangering public **** health, both objectively may cause the death of the patient or serious damage to the health of the patient's consequences, and the difference between them mainly lies in: (1) the objective aspect is different. The former in the objective aspect of the performance, in violation of national laws and regulations on medical management, illegal practice of medicine, the circumstances are serious behavior. The latter in the objective aspect of the medical staff in the legal process of diagnosis and treatment, violation of rules and regulations, serious irresponsibility, resulting in the death of the patient or serious damage to the health of the patient's behavior. (2) The subject is different. The subject of the former is not qualified to practice medicine, while the subject of the latter is the medical personnel who have obtained the qualification to practice medicine. (3) The subjective aspect is different. The former behavior caused by the death of the patient or serious damage to the physical health of the patient, the mental attitude can be negligence, can also be indirectly intentional, but for the violation of the medical management system, the behavior is directly intentional. The latter's mental attitude towards causing serious adverse consequences can only be negligence. (C) The boundary between the crime of illegal practice of medicine and the crime of illegal business operation The crime of illegal business operation refers to the violation of state regulations, illegal business activities, disturbing the market order, with serious circumstances. It and the crime of illegal practice of medicine **** the same place is manifested in, are against the state licensing system, must be serious circumstances to constitute. The difference between the two is manifested in: (1) the object is different. The object of the crime of illegal practice of medicine is the state's management system of medical institutions and the public's life and health safety, while the object of the latter is the order of market management, which generally does not infringe on the citizens' right to life and health. (2) The objective aspects are different. The crime of illegal practice of medicine is manifested in the illegal engagement in medical activities, while the latter is manifested in the illegal engagement in business activities other than medical activities. (3) The main body is different. The subject of the crime of illegal practice of medicine is a special subject, i.e., a person who usually possesses certain medical knowledge but has not obtained the license to practice medicine, while the subject of the latter is a general subject. (D) the boundaries between the crime of illegal practice of medicine and the crime of fraud fraud, refers to the illegal possession for the purpose of using fictitious facts or concealment of the truth of the law, fraudulent acquisition of a larger amount of public and private property behavior. In the objective aspect, the crime of fraud and the crime of illegal practice of medicine in the perpetrator does not know the medical knowledge, but claimed to be proficient in medical skills, profiting from the money of the patient, but the two have the essential difference: (1) the object is different. The former violates the state's management system of medical institutions and the public's life and health safety, while the latter violates a single object, i.e., the ownership of public and private property. (2) Objective aspects are different. The former actor is mainly to use the lack of medical knowledge of the patient, pretending that their medical skills and deceive the victim. The latter actor is the use of deception, that is, by fictional facts or conceal the truth of the deception, so that the property owner, the administrator to produce the illusion, believe the truth, and thus seem to "voluntarily" hand over the property. (3) different subjects. The subject of the former is a special subject, that is, did not obtain a doctor's license, the subject of the latter for the general subject, that is, 16 years of age can be fully criminally responsible. (4) different subjective aspects. The former manifested as indirect intent or negligence, the latter manifested as direct intent. Fourth, the illegal practice of medicine penalty should be noted according to China's criminal law, article 336, paragraph 1, the penalty for the crime of illegal practice of medicine is divided into three sentencing ranges, one is "serious, shall be sentenced to less than three years' fixed-term imprisonment, detention or control, and or a single fine"; two is "serious"; "serious"; "serious"; and "serious"; and "serious". If the health of the patient is jeopardized, he or she shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years, and shall also be fined"; and thirdly, "if he or she causes the death of the patient, he or she shall be sentenced to fixed-term imprisonment of not less than ten years and shall also be fined". For the above three sentencing ranges, in judicial practice, we should pay attention to the following issues: First, for the "aggravating circumstances", both as a criminalization of the circumstances to be taken into account, but also as a sentencing of the circumstances to deal with, that is, in the conviction of the circumstances to look at the gravity of the circumstances; in the sentencing of the circumstances, can not be ignored! In other words, when convicting, the gravity of the circumstances should be taken into account; when sentencing, the penalty range "aggravating circumstances" should not be set aside. Secondly, the criterion for the second sentencing range, "seriously jeopardizing the physical health of the patient", should not be based on the criterion of medical malpractice. Because the illegal practice of medicine does not belong to the legal, normal medical activities, does not belong to the category of medical accidents, if the medical accident level standards as the basis, and according to "three years or more than ten years of imprisonment" for punishment, with the crime of medical malpractice is too big a difference between the statutory maximum penalty of only three years, especially for a certain amount of medical knowledge, just Because of the failure to obtain a doctor's license leads to such a big difference in the conviction and sentence with the medical personnel who have already obtained a doctor's license, naturally, it is difficult to convince people. Therefore, the new criminal law provides that "serious damage to the health of the patient" should be interpreted as a serious injury that meets the criteria for the identification of serious bodily injuries. Although the legal range of the crime of causing serious injury by negligence is basically the same as the first legal penalty range of the crime, but in view of the same damaging consequences, the crime of illegal practice of medicine compared with the crime of causing serious injury by negligence, in addition to violating the physical health of the patient, the crime of illegal practice of medicine also violates the state's management system of medical and health care, and the social harm is greater than that of the crime of causing serious injury by negligence. Therefore, in the case of causing serious injury to a patient through negligence in the course of illegal medical practice, the penalty should still be determined within the second sentencing range, i.e., fixed-term imprisonment of not less than three years and not more than ten years, and a fine. Thirdly, with regard to the third sentencing range, i.e., "causing the death of the patient, he shall be sentenced to fixed-term imprisonment of not less than 10 years and fined", we believe that there are unreasonable aspects in this provision. Before we discuss this, let us look at two cases: the first case is that of Yang, an internist in the medical office of a factory, who had been engaged in medical work for 25 years. After being laid off, Yang opened a clinic without authorization. Zhang sought treatment from him several times and improved. However, when Yang Mou last infusion for Zhang Mou, an adverse reaction, Zhang Mou died. It was determined that there was no causal relationship between Yang's treatment methods and Zhang's death. The second case is: after graduating from a city health school, Liu opened a clinic without qualification and practiced medicine for 3 years. In a clinic activity, Liu mou for Dong mou injection of penicillin, because Liu mou think general people will not appear allergic reaction, even if allergy can be timely treatment, the story first did not do skin test. 20 minutes after the drip, Dongmou adverse reaction. Liu mou check the infusion, found that the drip speed is normal, concluded that Dong mou for allergic reaction, immediately rescue. In the process of resuscitation, the patient's relatives think that Liu's technology is not good, they carry their transfer, the patient died on the way to the hospital. The forensic medical appraisal, dong mou is in penicillin anaphylactic shock, due to serious violation of the "shock patients should be rescued on the spot, can not move" the principle of medical technology and directly lead to death. In both cases, the death of the patient occurred, but in terms of circumstances, it was not serious. The first case did not even meet the standard of the first range of "aggravating circumstances", should it also be sentenced to more than 10 years of imprisonment? In the second case, Liu did not obtain a doctor's license to engage in unauthorized medical activities and violation of the provisions of the prior to the patient did not give skin test, Dong's death has a certain degree of fault, belongs to the circumstances of the act of seriousness, has already constituted the crime of unlawful practice of medicine. However, the patient Liu's death is caused by a variety of reasons, that is, in addition to DongMou did not follow the regulations for skin test, family members without authorization to move the patient is also caused by the patient's death of an important reason. Therefore, Dongmou should not be subject to more than ten years of criminal punishment, at most by the first range of punishment, otherwise it is inevitable that "the punishment is not appropriate for the crime", so that the punished person to produce resistance, is not conducive to their education and rehabilitation, and contrary to the original intent of the penalty. Therefore, we believe that, in the face of complex judicial practice, in accordance with the principle of appropriateness of punishment and responsibility, the third sentencing range should make the necessary amendments, i.e., instead of purely on the basis of whether or not there is the death of the patient as the basis for sentencing to more than 10 years' imprisonment, the judge should be given discretionary power to amend the range to read: "If the circumstances are particularly serious, the penalty shall be more than 10 years' imprisonment and a fine. ".