Research On The Judicial Cognizance Of The Crime Of Illegal Practice Of Medicine

The crime of illegal medical practice refers to a person who has not been licensed to engage in medical activities and has serious circumstances.From this,the determination of the subject qualification of this crime is of vital significance to the crime and non-crime.The person who has not obtained a doctor's qualification in this crime should be considered as the combination of the two persons of doctor qualification and practicing requirements.That is,the person who has not passed the national unified physician qualification examination become the main body of the crime,and include the person who has obtained a doctor's qualification without the registration of the relevant administrative department to obtain a licensed physician's qualification certificate.The main body of this crime should be the general subject,that is,people who is lack of capacity for criminal responsibility or don't reach age of negative criminal responsibility may be identified as the main body of the crime.In the concrete cognizance to the subject of the crime,the subject of the crime of illegal medical practice is defined as the general subject.For the person who has the legal medical qualifications,the subject of the crime can also be identified as the subject of the crime in a certain circumstances.As a special group of medical profession,interns are essentially different from the main body who have the medical profession.We should be aware of the inevitability of its existence,so the interns should not be the subject of the crime of illegal medical practice.Through practice cases,we can conclude that the harmful behavior in the crime is a positive act.Whether the behavior of the offense is a crime of illegal medical practice can be considered from the following aspects.First,the behavior person must carry on the medical behavior.The medical behavior here is understood in a narrow sense.It is a series of comprehensive behavior by the professional medical staff with their medical knowledge and clinical practice ability.Secondly,the practice of medical practice in this crime refers to the behavior of the perpetrator who has long,repeated and sustained medical activities,and the purpose of making a profit in the course of medical activities can not be considered as an essential element for the establishment of the crime.Thirdly,according to the criminal law,it is the crime of practicing medicine only when the behavior of a practicing person achieves serious circumstances.Therefore,the circumstances are serious is the cognizance of crime and no crime,and also the measurement of penalty.The plot of this crime can be seriously analyzed from four aspects,and avoid duplicate identification with other elements in the process.At the same time,the amount of profits obtained by illegal practice of medical practice and the length of the time can not be considered as other circumstances in the gravity of the circumstances.It is found that the serious damage or death result from the health of the medical staff is caused by the behavior of the actor,and the premise is to identify the causal relationship between the practice of medical treatment and the result of the damage in criminal law.The existence of causality is objective,and a kind of harmful behavior may cause the occurrence of several kinds of damage results,and a kind of damage result may also be caused by a variety of harmful behavior.Therefore,it should be fully grasped when determining the causal relationship between the harmful behavior of the crime and the result of the aggravation.The effect of the third party or the aggrieved party should be considered and distinguished,and the occurrence of the damage should not be added to the actor.Combining the explanation of the 2016 Supreme People's Court's �Explanation of the specific application of law on the trial of criminal cases of illegal practice of Medicine�,the theory of considerable causality can be adopted to analyze the two aspects of relevance and phase when determining the causal relationship between the action of medical treatment and the aggravation of the aggravated result of the crime of illegal practice of medicine.At the same time,causality can be considered from the medical technology of medical practitioners and the completeness of medical equipment for diagnosis and treatment.In the process of identifying the crime of illegal medical practice,it is easy to confuse with the crime of medical accident,the crime of illegal birth control operation,the crime of intentional homicide,the crime of intentional injury and so on.We can make a comprehensive comparison from the four aspects of the constitution of a crime to determine which kind of crime is,so as to better distinguish them.