Lawyer's character

"Presiding judge, judge: The prosecutor believes that... although the defendant Tao Ji has obtained the qualification of a doctor and the qualification of a practicing physician, he has not obtained a license to practice in a medical institution. He treated others at home and caused the death of others. His behavior constituted the illegal practice of medicine. crime.

The defendant's behavior has violated the provisions of Article 336, paragraph 1, of the Criminal Law. We recommend that defendant Tao Ji be sentenced to a fixed-term imprisonment of more than ten years and be fined. complete. "The prosecutor expressed his opinion.

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"The defendant's defender expressed his defense opinion." The presiding judge looked at the defense table.

"Presiding Judge, Judge: The defender believes that the defendant Tao Ji holds a medical qualification and obtained a medical practitioner qualification certificate in 1999. He is not a qualified medical practitioner as stipulated in Paragraph 1 of Article 336 of the Criminal Law. For the subject of the crime of illegal medical practice, his behavior of receiving medical treatment at home does not constitute the crime of illegal medical practice for the following reasons:

1. The prosecutor’s accusation does not conform to the original intention of the legislation.

The defender believes that the crime of illegal medical practice is a new crime when the Criminal Law was revised in 1997. It is mainly applicable to people who do not have professional medical knowledge and who, under the guise of treating diseases and saving lives, defraud money and harm the people in society. Behaviors that harm people's lives and health.

Illegal medical practice not only violates the order of medical management, but also endangers the lives and health of many unspecified patients in society. Therefore, the crime of illegal medical practice is a crime endangering public health.

It can be seen that the purpose of setting up the crime of illegal medical practice in the Criminal Law is not to focus on how to practice medicine, but who is practicing medicine; it is aimed at the behavior of people without professional medical knowledge who cheat money in the name of treating diseases and saving lives.

2. The qualifications for practicing physicians have the same meaning as the qualifications for practicing doctors.

The 'doctor's professional qualification' stipulated in the first paragraph of Article 336 of the "Criminal Law" is the same as the 'doctor's qualification' in the "Practicing Physician Law" (the "Physician Law" will be implemented on March 1, 2022, and the "Practicing Physician Law" will be abolished) There is no essential difference in the legislative intent of "medical practitioner qualifications", but they are just expressed differently. Its purpose is to require those who treat patients to master nationally recognized professional medical knowledge and techniques.

Article 336 of the "Criminal Law" clearly stipulates that a person who has not obtained the qualification to practice medicine illegally practices medicine, and only if the circumstances are serious, it constitutes this crime. In other words, this crime only targets those who illegally practice medicine without obtaining the qualification to practice medicine. people.

The Practicing Physician Law, which was implemented on May 1, 1999, requires physicians to be registered, and the prerequisite for practicing medicine is to obtain a practicing physician qualification.

It can be seen that the purposes of the above two laws are actually the same.

In other words, anyone who holds the qualification to practice medicine should not fall within the scope of the crime of illegal medical practice in Article 336, Paragraph 1, of the Criminal Law.

3. From obtaining the qualification to practice medicine to actually practicing, the required registration procedures are administrative management means.

Practicing physician qualifications refer to the knowledge, skills and abilities that one should have to practice independently or engage in medical professional and technical work. Qualification as a medical practitioner is independent of whether the person is currently engaged in medical practice.

According to the provisions of the Practicing Physician Law, any person who has the qualification to practice medicine, except for special circumstances stipulated by law, only needs to apply for registration to the health administrative department of the people's government at or above the county level where he is located. The health administrative department that accepts the application shall receive the application upon receipt of the application. Registration will be approved within thirty days from the date of registration, and a physician practice certificate printed uniformly by the health administration department of the State Council will be issued.

From the above regulations, it is not difficult to see that from obtaining the qualification to practice medicine to actually practicing medicine, you only need to complete the registration procedures. 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 1999, he obtained a medical practitioner qualification certificate in accordance with relevant regulations and continued to practice until his retirement.

As of now, the defendant Tao Ji still has the qualifications of a practicing physician recognized by the state, that is, he has the medical knowledge, skills and abilities recognized by the state to engage in diagnosis and treatment work. This qualification has not disappeared or been canceled due to his retirement.

The defendant's medical practitioner qualification is actually the same as the lawyer qualification admission system. Anyone who passes the corresponding national qualification examination indicates that the state recognizes that they have the knowledge and skills to engage in relevant professional work. Regardless of whether they are currently engaged in or intend to engage in this work, it will not affect their qualifications. If relevant personnel want to engage in relevant professional work, they only need to complete the relevant procedures.

To sum up, the defendant Tao Ji is a person qualified to practice medicine, and he is not a criminal subject of the crime of illegal medical practice stipulated in Article 336, paragraph 1, of the Criminal Law. The defender believed that defendant Tao Ji was innocent. complete. "Fang Yi expressed his defense opinion.

The reason why Fang Yi mentioned the lawyer qualification system is because both the judge and the prosecutor opposite are legal professionals, and their understanding of the lawyer qualification system is deeper and more thorough than that of the physician qualification system. This is more helpful for judges to understand the purpose of the health department in setting the qualifications for practicing doctors.

Regardless of whether the judge understands the purpose of establishing the qualification to practice medicine, Fang Yi feels it is necessary to explain it to the court, because this is not something ordinary people can understand, and not all legal professionals understand it.

"The prosecutor can respond to the defense opinions of the defender." The presiding judge lowered his head and didn't know what he was writing, then looked up at the prosecutor's box and said.

“In response to the defense counsel’s defense, the prosecutor mainly expressed the following views:

According to the provisions of the Practicing Physician Law, persons who have obtained the qualification of practicing physicians may apply for registration with the health administrative department of the people's government at or above the county level where they are located.

Registered physicians can practice in medical and health care institutions in accordance with the registered practice location, practice category, and scope of practice, and engage in corresponding medical, preventive, and health care services. If the above-mentioned matters change, the registration change procedure should be completed at the health administrative department that approved the registration.

The 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 people's health.

It can be seen that without medical registration, even if you obtain a medical practitioner qualification certificate, you are not allowed to engage in medical practice activities. If a medical practitioner violates the above regulations, it will constitute illegal medical practice. If the circumstances are serious, it will constitute the crime of illegal medical practice.

In this case, although the defendant had obtained the qualification to practice medicine, he did not register with the corresponding health administrative department, and he caused the death of a patient while receiving medical treatment privately. His behavior constituted the crime of illegal medical practice. complete. ” the prosecutor responded.

"The defender can respond to the prosecutor's opinions." After hearing the prosecutor's response, the presiding judge looked at the defense table and continued.