Researches On Several Issues Of The Crime Of Illegal Medical Practice

There are a lot of disputes on the recognition of the crime of illegal medical practice from theory,which brings judiciary trouble in handling cases of illegal medical practice. The interpretations about specific application of law announced by the supreme court in 2008,clear disputes on the recognition and application of illegal medical practice .This interpretation rules:what is serious circumstance, standard of identifing serious damage to human health, defining certified qualification of doctor.But author holds reservation for supreme court's standard of identifing serious damage to human health .By analyzing the administral regulation﹑ criminal regulation﹑judicial interpretation from supreme court on illegal medical practice,author poses several issues in dispute on the judical recognition of the cime of illegal medical practice,and discusses the disputes from four parts:illegal medical action﹑serious circumstance﹑subject﹑subjective mental.after commenting on some arguments,author reaches final conclusion. The article has fours parts:The first part discusses the meaning,scope and traits of the medical action.Medical action means the special medical conduct in concept, and does a danger to health, which is conducted only by doctor with medical professional knowledge and medical technology. Illegal practice is clinical conduct implemented repeatedly.The object of the crime has no specific person, it potentially threats people's life and health rights. Medical action is behavior ruled by law, abstract behavior and professional behavior.The second part researches on circumstances of illegal medical action,which can be divided into basic circumstances and aggravated circumstances.The serious circumstances ruled in the basic crime is conviction circumstances, if illegal medical practice causes patient's injury or death,it is aggravated sentence circumstances. The crime of aggravated result demands subjective fault and causal relationship exsited in illegal practice and harmful result. The standard of identifing serious injury of body also can be applied to the crime of illegal medical practice.The third part probes into the subject of the crime of illegal medical practice. The disputes on the subject is how to understand the meaning of"no certified qualification of doctor".Author thinks it is the combination of qualification of doctor and qualification of certification,neither is dispensable.As to the difficult problem of recognizing the subject of illegal medical practice,author holds that only if the subject has"certified qualification of doctor",the action of steping over specific place﹑category or scope is not ruled by the crime of illegal medical practice, if the circumstance is serious ,it is forbidden by crime of medical accident.Lack of practice qualification of doctor, person with excellent medical skill or doctor in community are also the subject of the crime of illegal medical practice. However ,due to backward hygiene in rural area,rural doctor is not necessary the subject of this crime. Other hygienic personnel except for epidemic prevention personnel is the subject of the crime.The last part analyzes subjective intention of the crime of illegal practicing medicine,according to the classification of basic crime constitution and aggravated crime constitution, the subjective mental of basic crime constitution is only direct intention, but negligence is the mental of aggravated crime constitution.