Cognizance Of The Objective Elements Of The Crime Of Producing And Selling Fake Drugs

Ensuring drug safety is one of the important contents to protect people’s livelihood.Whether we can effectively combat drug crimes will become an important standard to consider whether our country’s legal system is perfect.With the continuous development of the drug market,there are more and more difficulties in the judicial determination of the crime of producing and selling fake drugs,the application of Administrative Law and Criminal Law is not clear,the penalty is excessive,the conflict between judicial cognition and general cognition is more and more intense.Because of these difficulties,this article aims to make clear that the legal interest of people’s life and health is the core legal interest protected by this crime by discussing the legal interest of this crime,then it reveals that the difference between the fake drugs in Criminal Law and the fake drugs in administrative law should be based on whether the fake drugs will harm the legal interest at present.This article is divided into the following four parts.The first part outlines the legislative process of drug crime and focuses on the connotation of legal interest protected by the crime.From 1979 to 2011,the article of the crime of producing and selling fake drugs was revised,and the tendency towards the legislation of people’s livelihood and human rights was analyzed.In addition,the connotation of legal interest protected by the crime of producing and selling fake medicine is discussed.The legal interest of life and health should be the main object of protection,and the legal interest of drug management order should be the secondary content.The second part is the identification of fake drugs.It is pointed out that the criterion of fake drugs should be based on the active ingredient and the clinical evidence,and that the degree of health threat should be taken as the criterion for the classification of fake drugs and inferior drugs in China.According to the revised content of the Drug Administration Law,the scope of fake drugs should be redefined to include traditional Chinese medicine,quack medicine,excipients for human-use drugs and drug packaging devices.It should not include drugs imported without permission,drugs for non-personal use,etc..The third part is the identification of producing.By analyzing the existing viewpoints of scholars and those embodied in legislation,and combining with the content of legal interests,the author concludes that the understanding of production behavior should be expanded,and that the clinical stage of experimental research and development should be brought into the scope of regulation of the crime of producing and selling counterfeit drugs,however,it should not be regarded as production in criminal law.The fourth part is the identification of selling.By analyzing the definition of traditional selling and the understanding of scholars on selling,it is clear that identification of selling should not take the profit as the necessary condition,and the recognition of selling should also spread to the help behavior such as transportation,storage and so on.In the end,it is discussed that the act of purchasing drugs on behalf of others is not the crime of producing and selling fake drugs,but the crime of illegal management.But the behavior of mutual aid between the patients should not be regarded as the selling of this crime.