How to grasp the crime of "seriously damaging patients' health" in illegal medical practice

Therefore, the crime of illegal medical practice has been added to the first paragraph of Article 336 of the revised Criminal Law. It should be said that, corresponding to the crime of medical malpractice, it is of great significance to add the crime of illegal medical practice to the criminal law and standardize the medical and health management order through the criminal law. However, through the trial practice in recent years, we also found that there are many problems in how to accurately convict and sentence the crime of illegal medical practice, which are mainly manifested in the following aspects: First, the understanding of the subject of this crime is vague; Second, the subjective form of this crime is controversial; Third, there are different understandings on how to understand the harmful consequences of this crime. In addition to the vague legislative language used in the legislation of this crime, the main reason for the above controversy is that there is no relevant judicial interpretation of this crime so far, which leads to difficulties in the trial of related cases in practice. Through the analysis of the following cases, the author intends to focus on the understanding of the harmful results of this crime and concretize some vague provisions in order to facilitate the correct understanding and application of this crime in judicial practice. 1. In this case, the defendant Han used "Earthwork" to treat Huang (18 years old), a patient with comminuted fracture of the left tibia, in a private clinic opened in his own home without obtaining the "Doctor's Practice Certificate" or "Medical Institution's Practice License". Later, he was treated in Huang's home for many times, but Huang's condition gradually deteriorated. Finally, he had to have his left lower limb removed. After forensic identification, Huang's injury was serious injury level 2. According to the medical technical appraisal of Nantong Medical Association, the conclusion is that the defendant Han didn't know enough about the development of Huang's illness and severe osteofascial compartment syndrome during the diagnosis and treatment, and didn't take effective treatment measures in time. Delayed illness leads to necrosis and amputation of the yellow left calf. There is a causal relationship between his medical behavior and the damage consequences of Huang. The first opinion is that the crime of illegal medical practice belongs to the consequential offense that infringes on the personal rights of others, and the provisions of criminal law on the consequences of consequential offense are basically based on minor injuries, serious injuries and deaths that are well known in judicial practice. Defendant Han's illegal medical practice caused the victim Huang to be seriously injured, which should be considered as "seriously damaging the health of patients". The second opinion is that the revised criminal law uses "seriously damaging the health of patients" to express the harmful results in the provisions of the crime of illegal medical practice and the crime of medical accident, giving up the standard of serious injury and adopting the standard with strong professionalism in the medical field, which reflects the legislators' consideration of the particularity of the harmful consequences of the two crimes. Therefore, the standard of serious injury cannot be simply equated with the standard of serious injury to patients' health. It is necessary to analyze specific problems and make a comprehensive analysis of cases before it can be identified. The author agrees with the second opinion. Third, the evaluation of harmful results in criminal law refers to the damage caused by harmful behavior to the object. This crime belongs to consequential crime, that is, it requires harmful results to constitute this crime. It can be seen from the provisions of article 33 1 1 of the criminal law on the three sentencing ranges of this crime that illegal medical practice only constitutes this crime if the circumstances are serious or cause serious consequences. Among them, if the circumstances are serious, the sentence is at the first level, that is, fixed-term imprisonment of not more than three years; If the patient's health is seriously damaged, the sentence is Grade II, that is, 3 years to 10 years in prison; If the death of the patient is caused, the sentence shall be Grade III, that is, 10 years or more. Therefore, correctly identifying the harmful result of this crime is the key to correct conviction and sentencing. At present, the legal profession has no objection to the standard of death, but there are different views on what is serious and what is serious harm to patients' health. (a) what is serious. At present, experts and scholars have different opinions on this. In this article, I will not discuss it in detail, but try to list it according to several common situations in practice: 1. Illegal medical practice has been banned by the administrative department of health according to law, and it is still illegal to practice medicine on the spot or in different places for many times; 2. The patient's condition is aggravated due to improper medical treatment; 3. Treat diseases with barbaric methods; 4. Deceive patients with fake and inferior drugs; 5, defrauding patients of a large amount of property; 6. Illegally practicing medicine for more than 2 years or illegally opening more than 2 medical institutions; 7. Illegally practicing medicine causes patients to delay the time of seeing a doctor, resulting in serious damage to patients' health or death; 8. Other serious violations of administrative regulations. (2) What is serious harm to the health of patients? In the provisions of the crime of illegal medical practice and the crime of medical accident, the revised criminal law uses "seriously damaging the health of patients" to express the harmful results. This is unique among all the expressions of similar crimes in criminal law. This provision abandons the standard of serious injury that is widely known in judicial practice at present, and adopts the standard with strong professionalism in the medical field, which can be said to reflect the legislators' consideration of the particularity of the harmful consequences of the two crimes. Therefore, the author thinks that the first opinion takes the standard of serious injury as the boundary between felony and misdemeanor, which embodies the idea of classifying the crime of illegal medical practice as a general criminal offence, but it is inappropriate. The reason is: 1 Criminal legislation itself reflects and requires the words in the code to have the same meaning. Choosing the same sentence to express the damage consequences of the two crimes has shown that legislators have considered the similarity of the internal components of the two crimes. 2. Illegally practicing medicine causes serious damage or death to patients' health. In this case, the characteristics of harmful behavior are consistent with the crime of medical accident, both of which occur in medical activities. The complexity of the damage result is beyond the scope of the identification standard of human serious injury, and the most critical causal relationship between behavior and result can only be confirmed by the measurement method of medical standards. Therefore, it is not advisable to define the standards of felony and misdemeanor of illegal medical practice by the standard of serious injury. Then, what should be the standard of "seriously damaging the health of patients" in the crime of illegal medical practice? The author believes that when determining the standard of "seriously damaging patients' health", we should fully realize the close relationship between the crime of illegal medical practice and the crime of medical malpractice, and learn from the classification standard of medical malpractice crime. The State Council's "Regulations on Handling Medical Accidents" (hereinafter referred to as "Regulations") divides medical accidents into four levels: first-class medical accidents refer to deaths and severe disabilities of patients; Secondary medical accident refers to the serious disability and dysfunction caused by organ and tissue damage; The third-class medical accident refers to the general dysfunction caused by mild disability and organ and tissue damage; Four-level medical malpractice refers to other consequences that cause obvious personal injury to patients. In the later Classification Standard of Medical Accidents (Trial), medical accidents were further subdivided. In addition to the first-class medical accidents being fatal accidents, they are also subdivided into ten grades from the first-class B to the third-class E to show the different degrees of damage. It can be clearly seen from the damage degree of medical accidents above Grade III that the damage degree has "seriously damaged the health of patients". Therefore, the author believes that if the damage caused by illegal medical practice can be identified as a medical accident (except death) above the third level according to the Classification Standard of Medical Accidents (Trial), it is "seriously damaging the health of patients". To sum up, the author thinks that medical accidents (except death) above level 3 stipulated in the Classification Standard of Medical Accidents should be regarded as the standard of "seriously damaging patients' health" in this crime.