Lawyer
Chapter 763 Crime and Non-crime
Chapter 763 Crime and Non-crime
"The presiding judge and the judges: the public prosecutor believes that... the defendant Tao Ji has obtained the qualifications of a doctor and a licensed doctor, but has not obtained a license to practice in a medical institution, and his conduct of medical treatment at home caused the death of others, and his behavior has constituted illegal practice of medicine. crime.
The defendant's behavior has violated the first paragraph of Article 336 of the "Criminal Law". We recommend that the defendant Tao Ji be sentenced to more than [-] years of fixed-term imprisonment and a fine.complete. said the inspector.
……
"The defendant's defender made his defense opinion." The presiding judge looked at the defense seat.
"The presiding judge and the judges: the defender believes that the defendant Tao Ji holds the qualifications of a doctor and obtained a license to practice medicine in 336, so he is not the subject of the crime of illegal medical practice stipulated in the first paragraph of Article [-] of the Criminal Law." , his behavior of receiving medical treatment at home does not constitute the crime of illegal medical practice, for the following reasons:
[-]. The allegations made by the public prosecutor do not conform to the original intention of the legislation.
The defender believes that the crime of illegal medical practice is a new crime added when the Criminal Law was revised in [-]. Acts that infringe on people's life and health.
Illegal practice of medicine not only violates the order of medical management, but also endangers the life and health of many unspecified patients in the society. Therefore, the crime of illegal practice of medicine is a crime that endangers public health.
It can be seen that the purpose of setting the crime of illegal medical practice in the Criminal Law is not how to practice medicine, but who is practicing medicine; it is aimed at people without medical professional knowledge who cheat money in the name of curing diseases and saving lives.
[-]. The qualifications of medical practitioners have the same meaning as the qualifications of medical practitioners
The 'doctor's qualification' stipulated in the first paragraph of Article 336 of the "Criminal Law" and the 'licensing doctor's qualification' in the "Medical Practitioner Law" (March 2022, 3, the implementation of the "Physician Law" and the abolition of the "Practice Physician Law"), There is no essential difference in the legislative intent, only the expression is different.Its purpose is to require that those who see patients should master the professional medical knowledge and technology recognized by the state.
Article 336 of the "Criminal Law" clearly stipulates that if a person who has not obtained the qualification to practice medicine illegally practices medicine, the crime is constituted only if the circumstances are serious.
The "Law of Practicing Physicians" implemented on May [-], [-] requires doctors to be registered, and the prerequisite for practicing medicine is to obtain the qualifications of practicing physicians.
It can be seen that the purposes of the above two laws are actually the same.
In other words, anyone who holds the qualification of a medical practitioner should not fall within the scope of the crime of illegal medical practice in the first paragraph of Article 336 of the Criminal Law.
[-]. The registration procedures required from obtaining the qualifications of practicing doctors to practicing in practice are administrative management means.
Qualifications of medical practitioners refer to the knowledge, skills and abilities required to practice independently or engage in professional medical technical work.The qualification to practice a doctor has nothing to do with whether the person is currently practicing medical work.
According to the "Law of Practicing Physicians", any person who has the qualifications of practicing physicians, except for the special circumstances stipulated by the law, only needs to apply for registration to the health administrative department of the people's government at or above the county level in the place where he is located, and the health administrative department that accepts the application shall receive the application. Registration will be granted within [-] days from the date of registration, and a doctor's practice certificate will be issued uniformly printed by the health administrative department of the State Council.
From the above regulations, it is not difficult to see that from obtaining the qualification of a medical practitioner to practicing in practice, only the registration procedures are required. This is purely an administrative management method and has nothing to do with whether it constitutes illegal medical practice.
In this case, Tao Ji obtained a medical certificate issued by the Ministry of Health of the Central People's Government in his early years. In [-], he obtained a medical practitioner qualification certificate in accordance with relevant regulations, and he continued to practice until his retirement.
So far, the defendant Tao Ji still has the qualifications of practicing doctors recognized by the state, that is, he has the medical knowledge, technology and ability recognized by the state to engage in diagnosis and treatment work, and this qualification has not disappeared or been canceled due to his retirement.
The qualifications held by the defendant to practice medicine are actually the same as the admission system for lawyer qualifications. Anyone who passes the corresponding national qualification examination shows that the state recognizes that he has the knowledge and skills to engage in relevant professional work.Regardless of whether they are currently engaged in or intend to engage in the work, it does not affect their qualifications.If the relevant personnel want to engage in relevant professional work, they only need to go through the relevant procedures.
To sum up, the defendant Tao Ji is a person qualified to practice medicine, and he does not belong to the criminal subject of the crime of illegal medical practice stipulated in the first paragraph of Article 336 of the Criminal Law.The defender believes that the defendant Tao Ji is innocent.complete. "Fang Yi issued a defense opinion.
The reason why Fang Yi mentioned the lawyer qualification admission system is because the judge and the public prosecutor facing him are legal professionals, and they have a deeper and more thorough understanding of the lawyer admission system than the doctor admission system.This is more conducive to the judge's understanding of the purpose of the health department to set up the qualifications for practicing doctors.
Regardless of whether the judge understands the purpose of establishing the qualifications for practicing doctors, Fang Yi feels that it is necessary to explain to the court, because this is not understood by ordinary people, nor is it understood by legal professionals.
"The prosecutor can respond to the defender's defense opinion." The presiding judge lowered his head and didn't know what he was writing, then looked up at the public prosecutor's seat and said.
"In response to the defender's defense, the public prosecutor mainly expressed the following views:
According to the "Practice Physician Law", a person who has obtained the qualification of a medical practitioner may apply for registration to the health administrative department of the people's government at or above the county level.
Registered physicians can practice in medical and health care institutions according to the registered practice location, practice category, and practice scope, and engage in corresponding medical treatment, prevention, and health care services.If the above matters change, it should go to the health administrative department that approves the registration to go through the formalities of changing the registration.
The public prosecutor believes that the reason for such regulations is not only to facilitate the management of medical personnel, but also to standardize the practice of medical personnel and avoid the proliferation of black clinics.It is also to protect the health of the people.
It can be seen from this that without the registration of a doctor, even if he obtains the qualification certificate of a medical practitioner, he is not allowed to engage in medical practice activities. If a medical practitioner violates the above regulations, he will constitute illegal medical practice.
In this case, although the defendant has obtained the qualifications of practicing doctors, he has not registered with the corresponding health administrative department, and caused the death of the patient during private consultation. His behavior has constituted the crime of illegal medical practice.complete. ’ the inspector responded.
"The defender can respond to the prosecutor's opinion." After listening to the prosecutor's response, the presiding judge looked at the defense seat and continued.
(End of this chapter)
"The presiding judge and the judges: the public prosecutor believes that... the defendant Tao Ji has obtained the qualifications of a doctor and a licensed doctor, but has not obtained a license to practice in a medical institution, and his conduct of medical treatment at home caused the death of others, and his behavior has constituted illegal practice of medicine. crime.
The defendant's behavior has violated the first paragraph of Article 336 of the "Criminal Law". We recommend that the defendant Tao Ji be sentenced to more than [-] years of fixed-term imprisonment and a fine.complete. said the inspector.
……
"The defendant's defender made his defense opinion." The presiding judge looked at the defense seat.
"The presiding judge and the judges: the defender believes that the defendant Tao Ji holds the qualifications of a doctor and obtained a license to practice medicine in 336, so he is not the subject of the crime of illegal medical practice stipulated in the first paragraph of Article [-] of the Criminal Law." , his behavior of receiving medical treatment at home does not constitute the crime of illegal medical practice, for the following reasons:
[-]. The allegations made by the public prosecutor do not conform to the original intention of the legislation.
The defender believes that the crime of illegal medical practice is a new crime added when the Criminal Law was revised in [-]. Acts that infringe on people's life and health.
Illegal practice of medicine not only violates the order of medical management, but also endangers the life and health of many unspecified patients in the society. Therefore, the crime of illegal practice of medicine is a crime that endangers public health.
It can be seen that the purpose of setting the crime of illegal medical practice in the Criminal Law is not how to practice medicine, but who is practicing medicine; it is aimed at people without medical professional knowledge who cheat money in the name of curing diseases and saving lives.
[-]. The qualifications of medical practitioners have the same meaning as the qualifications of medical practitioners
The 'doctor's qualification' stipulated in the first paragraph of Article 336 of the "Criminal Law" and the 'licensing doctor's qualification' in the "Medical Practitioner Law" (March 2022, 3, the implementation of the "Physician Law" and the abolition of the "Practice Physician Law"), There is no essential difference in the legislative intent, only the expression is different.Its purpose is to require that those who see patients should master the professional medical knowledge and technology recognized by the state.
Article 336 of the "Criminal Law" clearly stipulates that if a person who has not obtained the qualification to practice medicine illegally practices medicine, the crime is constituted only if the circumstances are serious.
The "Law of Practicing Physicians" implemented on May [-], [-] requires doctors to be registered, and the prerequisite for practicing medicine is to obtain the qualifications of practicing physicians.
It can be seen that the purposes of the above two laws are actually the same.
In other words, anyone who holds the qualification of a medical practitioner should not fall within the scope of the crime of illegal medical practice in the first paragraph of Article 336 of the Criminal Law.
[-]. The registration procedures required from obtaining the qualifications of practicing doctors to practicing in practice are administrative management means.
Qualifications of medical practitioners refer to the knowledge, skills and abilities required to practice independently or engage in professional medical technical work.The qualification to practice a doctor has nothing to do with whether the person is currently practicing medical work.
According to the "Law of Practicing Physicians", any person who has the qualifications of practicing physicians, except for the special circumstances stipulated by the law, only needs to apply for registration to the health administrative department of the people's government at or above the county level in the place where he is located, and the health administrative department that accepts the application shall receive the application. Registration will be granted within [-] days from the date of registration, and a doctor's practice certificate will be issued uniformly printed by the health administrative department of the State Council.
From the above regulations, it is not difficult to see that from obtaining the qualification of a medical practitioner to practicing in practice, only the registration procedures are required. This is purely an administrative management method and has nothing to do with whether it constitutes illegal medical practice.
In this case, Tao Ji obtained a medical certificate issued by the Ministry of Health of the Central People's Government in his early years. In [-], he obtained a medical practitioner qualification certificate in accordance with relevant regulations, and he continued to practice until his retirement.
So far, the defendant Tao Ji still has the qualifications of practicing doctors recognized by the state, that is, he has the medical knowledge, technology and ability recognized by the state to engage in diagnosis and treatment work, and this qualification has not disappeared or been canceled due to his retirement.
The qualifications held by the defendant to practice medicine are actually the same as the admission system for lawyer qualifications. Anyone who passes the corresponding national qualification examination shows that the state recognizes that he has the knowledge and skills to engage in relevant professional work.Regardless of whether they are currently engaged in or intend to engage in the work, it does not affect their qualifications.If the relevant personnel want to engage in relevant professional work, they only need to go through the relevant procedures.
To sum up, the defendant Tao Ji is a person qualified to practice medicine, and he does not belong to the criminal subject of the crime of illegal medical practice stipulated in the first paragraph of Article 336 of the Criminal Law.The defender believes that the defendant Tao Ji is innocent.complete. "Fang Yi issued a defense opinion.
The reason why Fang Yi mentioned the lawyer qualification admission system is because the judge and the public prosecutor facing him are legal professionals, and they have a deeper and more thorough understanding of the lawyer admission system than the doctor admission system.This is more conducive to the judge's understanding of the purpose of the health department to set up the qualifications for practicing doctors.
Regardless of whether the judge understands the purpose of establishing the qualifications for practicing doctors, Fang Yi feels that it is necessary to explain to the court, because this is not understood by ordinary people, nor is it understood by legal professionals.
"The prosecutor can respond to the defender's defense opinion." The presiding judge lowered his head and didn't know what he was writing, then looked up at the public prosecutor's seat and said.
"In response to the defender's defense, the public prosecutor mainly expressed the following views:
According to the "Practice Physician Law", a person who has obtained the qualification of a medical practitioner may apply for registration to the health administrative department of the people's government at or above the county level.
Registered physicians can practice in medical and health care institutions according to the registered practice location, practice category, and practice scope, and engage in corresponding medical treatment, prevention, and health care services.If the above matters change, it should go to the health administrative department that approves the registration to go through the formalities of changing the registration.
The public prosecutor believes that the reason for such regulations is not only to facilitate the management of medical personnel, but also to standardize the practice of medical personnel and avoid the proliferation of black clinics.It is also to protect the health of the people.
It can be seen from this that without the registration of a doctor, even if he obtains the qualification certificate of a medical practitioner, he is not allowed to engage in medical practice activities. If a medical practitioner violates the above regulations, he will constitute illegal medical practice.
In this case, although the defendant has obtained the qualifications of practicing doctors, he has not registered with the corresponding health administrative department, and caused the death of the patient during private consultation. His behavior has constituted the crime of illegal medical practice.complete. ’ the inspector responded.
"The defender can respond to the prosecutor's opinion." After listening to the prosecutor's response, the presiding judge looked at the defense seat and continued.
(End of this chapter)
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