Legal analysis
The subject of this crime, that is, people who have not obtained the qualification of practicing medicine, including China people, foreigners and stateless people, does not constitute this crime. Individuals must obtain a medical practitioner's certificate and practice in a medical institution that has obtained the Practice License for Medical Institutions in accordance with the registered practice scope, location and category of the medical institution and the approved scope of registered disciplines. The object of the crime of illegal medical practice is the state's management system of medical institutions and the life, health and safety of the public. In order to standardize the behavior of medical institutions and their employees in China and ensure the safety and health of the public, the state has formulated a series of medical and health management systems to ensure and promote the healthy development of medical and health undertakings in China. Illegal medical practice not only disturbs the established good medical and health management order, but also often leads to poor quality of medical services because illegal medical practitioners do not have basic practice conditions, and also infringes on patients' health and life safety. First of all, there must be the act of engaging in medical activities without authorization. Medical activities mainly refer to the diagnosis and treatment, that is, the activities of diagnosing diseases through various examinations, eliminating diseases, relieving illness, alleviating pain, prolonging life and improving pathological or physiological conditions with the help of drugs, instruments and surgery. Subjectively, this crime is intentional. In the result of causing casualties of patients, the actor committed indirect intention rather than professional negligence. Because, as far as cognitive factors are concerned, the actor realizes that he lacks medical skills and the ability to control the development of the disease, and that if he does not get effective and timely treatment, the patient will be disabled until he dies, so it is not a fault; In terms of will, the patient's disability and death are ignored and allowed to indulge. The subjective aspect of the crime of illegal medical practice is intentional behavior, not direct intentional crime, that is, knowing that you are not qualified to practice medicine, you still engage in medical activities. However, when the actor causes the patient's death and health damage, it can be intentional or indirect, that is, he should foresee the serious consequences that illegal medical practice may cause the patient's death and injury, and let the harmful consequences happen because of negligence, unpredictability or credulity, or having foreseen the above consequences.
legal ground
Article 336 of the Criminal Law of People's Republic of China (PRC) * * * If the circumstances are serious and he has not obtained the qualification for illegal medical practice, he shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or only be fined; Those who seriously damage the health of patients shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and fined; Whoever causes death shall be sentenced to fixed-term imprisonment of not less than 10 years and fined. Whoever, without obtaining the qualification of a doctor, performs contraceptive recanalization surgery, fake contraceptive surgery, pregnancy termination surgery or takes out intrauterine devices for others without authorization, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also, or shall only, be fined; Those who seriously damage the health of patients shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and fined; Whoever causes death shall be sentenced to fixed-term imprisonment of not less than 10 years and fined. Article 336-1 Whoever implants genetically edited or cloned human embryos into human bodies or animals, or implants genetically edited or cloned animal embryos into human bodies, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.