Probing Into Several Problems Of Crime Of Illegal Practice

Chinese Criminal Law, issued in1979, does not include crime of illegal medicalpractice. Regulations and administrative laws of some departments have mentionedthis charge. As our country’s legislative quality improves and legal system graduallyperfects, crime of illegal medical practice comes into being in the new Criminal Lawissued in1979. However, our country’s criminal law in terms of crime of illegalmedical practice leaves much to be desired. Taking the ambiguity of some concepts asan example, it leads to no explicit and united standards and puzzlement in the judicialpractice work. Scholars still come to no final conclusion about these problems. Thispassage is intended to carry out a study on issues in dispute about crime of illegalmedical practice by explaining from4aspects to find relatively reasonable ways tosolve them.Part A is the general introduction to crime of illegal medical practice. In thispart, I introduce the legislative evolution of crime of illegal medical practice in ourcountry and relative stipulation about crime of illegal medical practice made bycountries and regions of foreign typical continental law system. By comparison of therelevant stipulation of crime of illegal medical practice home and abroad, I intend tofind out the similarities and differences of crime of illegal medical practice of ourcountry and that of foreign countries. The similarities rely on crime of illegal medicalpractice is statutory offense and status crime while the main differences reside oncrime of illegal medical practice in our country is aggregated consequential offenseand circumstance crime. A clear identification of the nature of crime of illegal medicalpractice in our country will be an evidence to solve issues in dispute on crime ofillegal medical practice.Part B is the subject of crime of illegal medical practice. Chinese Criminal Lawidentifies the subject of crime of illegal medical practice as “lack of qualified doctors”,as for the qualification for practicing medicine finds no clear definition in it.Consequently, there are no clear criteria of judicial practice and theoretical circle hasdifferent explanations. This passage makes an attempt to expand the range of thequalification for practicing medicine, i.e. the qualification for practicing medicine=passing qualification tests+passing registration+within the scope of practice+within medical subjects range of medical institutes. Lacking of any one of thesewould be identified as lacking of the qualification for practicing medicine. At the meantime, I advocate to establish unit crime of crime of illegal medical practice, thusexpanding the justice net of crime of illegal medical practice. As for whether toestablish crime of illegal medical practice, we need to screen the constitutionalcomponent of crime. In view of the special identity of intern, I suggest not to takeintern into crime of illegal medical practice.Part C is about the objective aspects of crime of illegal medical practice, whichhas been explained in the chapter of illegal medical practice. The main purpose of thischapter is to make a clear understanding of the connotation of crime of illegal medicalpractice, with emphasis on the interpretation of medical practice. Crime of illegalmedical practice is circumstance crime and the circumstances are so serious as toconstitute a crime. This passage lists some forms of “circumstance is being seriousenough to constitute a crime”, combined with crime of illegal medical practice,opinions of scholars and practice. As for the aggregated circumstances of crime ofillegal medical practice to badly harm patients’ health, this passage advocate to takecrime of illegal medical practice as a scale.Part D is some special problems crime of illegal medical practice. Throughanalyzing the establishment conditions of content of victim and feature of content ofvictim during crime of illegal medical practice, we come to such a conclusion thatcontent of victim shall be ground for elimination of illegality. In view of the popularmedical cosmetics, I think part of medical cosmetics belongs to medical behaviorsand part of medical cosmetics can be put into the range of crime of illegal medicalpractice. Illegal fetus gender identification is another issue in dispute. This passage,grounded on social harm to illegal fetus gender identification and our country’sconditions, I conclude that illegal fetus gender identification shall not be put intocrime of illegal medical practice. As for illegally medical subject’s relatives to renderhelp to them, I think we shall treat differently between non-medical help and medicalhelp, and the former doesn’t constitute a crime, but the latter can constitute a crimeconsidering his/her subjective and objective components.