Normative Interpretation Of The Constitutive Elements Of The Crime Of Illegal Medical Practice

How to explain the constitutive elements of the crime of illegal medical practice is not clear in theory and practice.Because the legal interest has a guiding role in the interpretation of the constituent elements.Therefore,legal interest should be taken as the core in the interpretation of the constitutive elements of the crime of illegal medical practice.The legal interest protected by this crime is not "medical management order".Order itself is a product of abstraction and spiritualization.In order to maintain the so-called order,the criminal judiciary can expand the extension of order without bottom line and fill in the connotation of order.In this way,"order legal interest" will become "pocket legal interest",and the modesty of criminal law will be out of the question.The purpose of the protection of criminal law is different from that of administrative law.The value orientation of criminal law is to protect legal interests,while the purpose of administrative law is to establish an administrative order.Whether or not to violate the order is only a formal judgment,that is,as long as the rigid provisions of the administrative law are violated,it can be regarded as a violation of the order,but the violation of the order does not mean the violation of the legal interests of the criminal law."Medical management order" can not be directly reduced to personal legal interest,nor can it play the guiding function of legal interest to the constituent elements.Therefore,it is not the qualified legal interest of this crime.We should think that the legal interest protected by this crime is "public health",but we must further explain the connotation of "public health".The "public" of "public health" refers to "not specific or most people",while the "public health" refers to "public health" The "health" of "health" does not generally refer to people’s life and health,because the scope of life and health is too broad.To roughly interpret the legal interest to be protected by this crime as life and health will improperly expand the scope of application of this crime.It should be considered that the "health" protected by this crime is "medical health",so only the infringement of the right to life and health in medical activities can be placed under the "health" legal interest protected by this crime.In the crime of illegal medical practice,"the person who has not obtained the qualification of doctor" should refer to "the person who has not obtained the qualification of doctor".The so-called registration is a kind of administrative means.If the act of violating this administrative means is regarded as criminal illegality,it will completely confuse the boundary between criminal illegality and administrative illegality.There is no relationship between the license of medical institutions and the qualification of doctors.Unit is unit,individual is individual.If the actor has the qualification of doctor,it means that he has the conditions to engage in medical activities.Whether his medical institution has the license of medical institution is not the same as whether he has the qualification of medical practice.The "medical behavior" in the crime of illegal medical practice should adopt the "theory of business behavior danger"."The theory of medical behavior in a broad sense" does not require whether the behavior has the purpose of medical treatment,but only emphasizes the "means" used for the human body,and whether the behavior itself is dangerous does not need to be considered.If we adopt this view,we will expand the scope of medical behavior,and even evaluate the behavior that may not cause harm to human body as medical behavior.According to the "generalized medical behavior theory",even the behavior of blood pressure measurement can be evaluated as medical behavior.Because blood pressure measurement must use sphygmomanometer,and sphygmomanometer belongs to medical equipment.In this way,to measure blood pressure for others must also have the qualification of a doctor,such a conclusion is obviously too absurd.The purpose of medical treatment emphasizes the purpose of behavior,excluding the behavior that has medical purpose and causes harm to human body.According to the "medical purpose theory",invasive medical cosmetology can not be placed under its concept.The serious circumstances in the crime of illegal medical practice do not reflect the personal danger of the actor and the social harmfulness of the behavior.The serious circumstances also do not belong to the objective punishment conditions.In the crime of illegal medical practice,the elements of "serious circumstances" should only be limited to the elements of infringing the legal interests protected by the crime.In other words,there is no result of infringing the legal interests protected by the crime,which can not be recognized The plot is serious.