The Discussion Of The Range Of “Counterfeit Drugs” In Criminal Law

The promulgation of the Criminal Law Amendment(8)in 2011 revised the crime of producing and selling counterfeit drugs.After the amendment,there were problems in the scope of the definition of "counterfeit drugs".Many medicines with actual curative effects have been identified as “counterfeit drugs” in the criminal law,and those who produce and sell such medicines have also received criminal penalties.This article analyzes the contingent state and actual state of the scope of the criminal “counterfeit drugs” from the controversial issues in the scope of the definition of “counterfeit drugs” in judicial practice,and finds out the reasons for the deviation between the two in practice and solves them one by one..It should be pointed out that,since the "drug management law" was revised when the article was completed,this article is mainly based on the status of "counterfeit drugs" before the amendment of the "drug management law" in 2019,and combined with the latest "drug management" The provisions of the Law on "counterfeit drugs" explore the solution to the problem of the scope of the definition of "counterfeit drugs",but it is clear that the amendment of the law does not mean that this issue loses the necessity of discussion.The legislative background and significance behind the revision of the Drug Administration Law and the independence of criminal offense judgments are still worth exploring,and we can not only learn from the discussion of the amendment to the concept of "counterfeit drugs" in the Drug Administration Law.Whether the problem method is unique and appropriate,and can provide a lesson for other similar problems.On the one hand,this article shows the background and significance of legislative amendments,and solves the legal problems behind it.On the other hand,it expounds the various ways to solve such problems.The first part is the proposal of core issues,which are mainly divided into two aspects: judicial disputes and theoretical disputes.The first section is the judicial controversy over the scope of the “counterfeit drugs” in the criminal law.Several controversial “counterfeit drugs” types are identified around the cases in practice.The second section is the definition behind the scope of the “counterfeit drugs” in the criminal law.The theoretical controversy is explained based on the different positions behind the judicial controversy.It is proposed that there are different views on the principles behind the scope of the definition of "counterfeit drugs".To define the standards of "counterfeit drugs",these points must be clarified.Right or wrong.In the second part,by answering the content of the theoretical controversy raised in the first part,I tried to establish the proper standard of “counterfeit drugs” in criminal law from the perspective of jurisprudence,and compared this standard with the actual standard of “counterfeit drugs” in practice.It is concluded that the scope of "fake medicine" in criminal law is too wide.Since the crime of producing and selling counterfeit drugs is complicated by legal interests,and the legal interests of the right to life and health of an unspecified person must take precedence over the legal interest of the regulatory order of drugs,the definition of "counterfeit drugs" must include that drugs will infringe the lives and health of citizens or The condition that it will cause corresponding risks;and the judgment of criminal illegality is independent of the judgment of administrative illegality,then the “counterfeit drugs” in the criminal law has its special characteristics compared with the “counterfeit drugs” in the administrative law,which is emphasized by the administrative law The order of protection of public administration is different.The definition of the scope of "fake medicine" in criminal law should give more consideration to the protection of personal interests.In practice,the definition of "counterfeit drugs" is often based on the provisions of the original Drug Administration Law,so it is obvious that the definition of "counterfeit drugs" in criminal law is too wide.The third part mainly analyzes the reasons for the wide definition of “counterfeit drugs”.From a judicial perspective,it is mainly due to the constant change of judicial interpretation,the failure to implement the concept of modestness in justice,and the failure of judicial judges to interpret the law.From the perspective of legislation,it is mainly due to the amendment of the Criminal Law(8)on the legislation of the production and sale of counterfeit drugs and the failure to pay attention to the connection between the provisions of the Criminal Law and the Criminal Law before the amendment of the Drug Administration Law.The fourth part addresses the problem of too wide a definition of “counterfeit drugs”.It should establish a judicial interpretation position with no value in the judiciary,deny the existence of criminals of crime,and consider judicial rationality,judicial leniency,and judicial humanity.Judicial judges should also pay attention to the flexible application of the interpretation method of criminal law,and should not stop at just interpretation.In terms of legislation,it is suggested that the crime of producing and selling fake drugs should include a general statement of "counterfeit drugs",and the definition of "counterfeit drugs" in the drug administration law should be changed to refer to the relevant provisions.If the criminal law can not be modified,the provisions of "counterfeit drugs" in the drug administration law can be modified in a neutral way,and the restrictions on the application of "counterfeit drugs" in the criminal law should be added Clause,so as to realize the effective connection with the provisions of criminal law.