Criminal Law Evaluation Of The Behavior Of "Illegal Transportation Of Blood Samples For Gender Screening" ——Take Gu’s Case Of Illegal Medical Practice An An Example

On the mainland,authorities have repeatedly banned sex identification of fetuses for non-medical purposes.But in our country Hong Kong area,fetal sex identification is not expressly prohibited.Some pregnant women find ways to send blood samples to medical institutions in Hong Kong,testing of the sex of the fetus through DNA,this is the " illegal transportation of blood samples for gender screening." Fetal sex identification for non-medical needs is illegal,but it is controversial whether it violates the criminal law.In Gu’s illegal medical practice case,the case of the court ultimately believes that Gu did not obtain the medical qualifications,the illegal identification of fetal gender behavior for non-medical need is serious,constitute the crime of illegal medical practice.However,there are differences on such issues as whether the extraction of pregnant women’s blood is illegal medical practice,whether the expansion of the serious circumstances of the judicial interpretation of this crime can be regarded as the basis of incrimination,whether Gu,Jiang and Ma Ji are convicted as accomplices,etc.,which need further discussion."In China’s criminal law,in principle,whether a crime is established can only be judged according to the constitution of the crime.Whether an act has the elements of a crime,whether it conforms to the constitution of a crime,it fully shows whether the act contains all the elements of the establishment of a crime,and whether a crime can be established,in addition,there is no other decision or restriction of the establishment of a crime elements or factors." Therefore,we need to judge whether a crime is established strictly according to the provisions of our criminal law.The basic crimes of the crime of illegal medical practice are simply described in China’s criminal law,and the relevant judicial interpretation at that time did not identify its criminal characteristics.If we just take the common sense and experience of daily life to judge,it is obvious that practicing medicine is to cure patients,and blood extraction is only to test the sex of the fetus,and finally can only come to the conclusion that it is not practicing medicine.In this regard,we need to grasp the specific meaning of illegal medical practice from the legal theory and legal norms.According to relevant laws and regulations,local judicial organs are not allowed to make documents of judicial interpretation,but local judicial interpretation documents do exist in judicial practice.Are the documents of judicial interpretation made by The Higher People’s Court of Zhejiang Province invalid? The law is not clearly stated,so the author tries to understand it within the possible scope of the description of relevant normative words,so as to conform to the actual work of the trial work of the basic court under the guidance of the local high court.The crime of illegal medical practice is a real identity crime,Gu did not obtain the doctor’s qualification,belongs to the man who has the identity,Jiang and Ma Ji have the doctor’s qualification,belong to the man who have no identity.But Gu is responsible for contacting pregnant women,Jiang,Ma Ji and others directly carry out behavior of the extraction of pregnant women’s blood,involving the problem of joint offense of negative identity and no identity.Hereto,the author tries to analyze whether there is the establishment of accomplice between Gu,Jiang and Ma Ji according to different theories of accomplice nature.