Lawyer's character

Chapter 822 The prescription is a good prescription, but...

Lawyers are the backbone of a law firm, professionals who are on the front line. However, there are still many jobs that need to be done in law firms around lawyers. The simplest ones are human resources, administration, finance, etc. These people are considered the second line and are lawyers. An indispensable component that serves lawyers.

In order to improve the efficiency of lawyers, in addition to the internal office system and electronic seals, there are also contact information for public prosecutors and judicial authorities that litigation lawyers commonly use in their work. Wanhua United Law Firm has dedicated personnel responsible for updating contact numbers every month for convenience. Lawyers do business.

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The case against Dr. Chu for producing and selling counterfeit medicines has finally come to court. Early in the morning, Fang Yi and Yun Qiao went to the county court for a hearing.

Because the case was simple and the defendant Chu Guangxian recognized all the facts of the case, the investigation process of the previous case went very quickly and will not be repeated here. The focus of this case is on the characterization of the case.

“The facts of this case have been clearly investigated, the court investigation has ended, and now the court debate has begun. The court debate mainly revolves around the disputed facts that have not been certified by the court and the issue of how the law should be applied based on the facts.

The prosecutor will speak first. "said the presiding judge.

"Presiding Judge, Judge: The prosecutor believes that the defendant Chu Guangxian prepared toxic drugs containing 'aconitine' without the approval of the national health administrative department. The capsules he prepared were counterfeit drugs, and there were production and sales violations. Behavior. Therefore, it constitutes the crime of producing and selling counterfeit drugs. The specific reasons are as follows:

According to the provisions of Article 10, Paragraph 2 of the "Opinions on Rectifying and Regulating the Drug Market" jointly issued by the Office of Restructuring and Restructuring of the State Council, the State Planning Commission, the State Economic and Trade Commission, the Ministry of Health, the State Food and Drug Administration, and the State Administration for Industry and Commerce, individual clinics can only It can distribute commonly used and emergency drugs approved by provincial health and drug regulatory departments.

There are also relevant provisions in the "State Council Approval of the Ministry of Health's Request for Instructions on Allowing Individuals to Open Medical Practices", which stipulates that prescriptions for clinics are formulated by local designated medical institutions.

According to Article 27 of the "Regulations for the Implementation of the Drug Administration Law of the People's Republic of China", medical institutions such as outpatient departments and clinics set up by individuals shall not be equipped with other drugs other than commonly used drugs and emergency drugs. The scope and varieties of commonly used drugs and emergency drugs shall be stipulated by the health administrative department of the people's government of the province, autonomous region, or municipality directly under the Central Government where they are located, in conjunction with the drug supervision and administration department of the people's government at the same level.

Article 62 of the regulations stipulates that if individual outpatient departments, clinics and other medical institutions provide drugs to patients that exceed the prescribed scope and variety, they will be punished in accordance with the provisions of the Drug Administration Law.

According to the provisions of Article 98 of the Drug Administration Law, the production (including preparation, the same below), sale, and use of counterfeit and inferior drugs are prohibited. It is prohibited to produce or import drugs without obtaining drug approval documents; it is prohibited to use raw materials, packaging materials and containers that have not been reviewed and approved in accordance with regulations to produce drugs.

Article 114 of the Drug Administration Law stipulates that anyone who violates the provisions of this law and constitutes a crime shall be investigated for criminal responsibility in accordance with the law. Article 115 stipulates that anyone who produces or sells drugs without obtaining a drug production license, a drug business license, or a medical institution preparation license shall be ordered to close down, the illegally produced and sold drugs and illegal income shall be confiscated, and shall be fined for illegal production and sales. , a fine of not less than 15 times but not more than 30 times the value of the drugs sold (including sold and unsold drugs, the same below); if the value of the drugs is less than 100,000 yuan, it shall be calculated as 100,000 yuan.

According to the above provisions, the defendant in this case, in the process of operating a clinic, used capsules for the victims that were not inspected, approved or reviewed by any drug regulatory agency, and the prescriptions were not given by designated medical institutions, let alone meet national standards. Therefore, , the drugs prepared by the defendant were counterfeit.

In addition, in this case, Chu Guangxian not only issued prescriptions to patients during the diagnosis and treatment process, but also sold homemade drugs to the patients, which is somewhat different from the prescribing behavior of ordinary doctors.

If you just write a prescription and let the patient go to a pharmacy or hospital (clinic) to buy medicines on his own, and the production, purchase and sale of these medicines have no direct relationship with the doctor, then what the doctor is doing is just an act of performing medical care duties. He is only responsible for his prescription and has nothing to do with it even if the medicine sold to the patient is counterfeit.

The defendant in this case sold self-prepared patent medicines directly to patients, which was an act of self-production and self-sales. It had formed a relationship between producers, sellers and consumers with the patients who purchased the medicines. Therefore, Chu Guangxian’s behavior belongs to production and sales behavior.

To sum up, the defendant knew that the drugs he prepared might endanger the health of patients, but adopted a laissez-faire attitude, resulting in serious consequences of poisoning and death of patients. His behavior constituted the crime of producing and selling counterfeit drugs.

According to the provisions of Article 141 of the Criminal Law, we recommend that the court impose a fixed-term prison sentence of fifteen years on the defendant. complete. "The male prosecutor spoke.

Fang Yi had communicated with the prosecutor twice before, but both parties had their own reasons, so Fang Yi failed to persuade the prosecutor.

"The defendant will now defend himself." The presiding judge looked at Chu Guangxian in the dock.

"I do not accept the accusation. I did not produce or sell counterfeit drugs. I only prepared the drugs to relieve the pain of patients. Moreover, the drugs I prepared did not enter the market and were only targeted at patients suffering from rheumatic diseases.

I have been practicing medicine for many years. It is a doctor’s job to treat illnesses and save lives. I have a prescription in my hand to treat illnesses. Should I just watch the patients in pain and not want to live?

I admit that in the process of preparing the medicine, I neglected the patient's other basic diseases, was not accurate in the dosage of the medicine, and used the medicine improperly. However, this medicine can indeed cure the disease, it is not a fake medicine, and it has indeed cured the patient...

The medicine I prescribed killed people. I have nothing to say about this, but the prescription is real. It is left by my ancestors. I ask the judge to punish me lightly according to the law. "Chu Guangxian defended.

He always felt that the prescription was a good one, but he was not sure of the dosage.

"The defendant's defender expressed his defense opinion." After a moment, the presiding judge raised his head and looked at Fang Yi.

"Presiding Judge, Judge: The defender believes that the defendant Chu Guangxian is a qualified doctor. He made medicines based on folk prescriptions and folk remedies for diagnosis and treatment. His behavior that caused the patient's death does not constitute the crime of producing and selling counterfeit medicines. He should It constitutes the crime of medical malpractice. The specific reasons are as follows:

1. The act of doctors preparing medicines based on folk prescriptions and folk remedies for diagnosis and treatment should not constitute the crime of producing and selling counterfeit medicines.

Although the defendant’s purpose of selling drugs to patients was to make money through diagnostic and treatment activities. However, the drug is only used for specific patients and has not been officially sold on the market, nor has it formed a certain scale of production and sales.

The defendant's behavior is different from the "production and sales" behavior in the crime of producing and selling counterfeit drugs stipulated in Article 141 of the Criminal Law.

In the crime of producing and selling counterfeit drugs, both production and sales should be market behavior, that is, this behavior should be an economic activity based on market circulation, aiming to achieve profits, and based on a certain supply and demand relationship.

Because only economic behavior within a certain market economic order may violate the basic rules of normal market economic activities and constitute an infringement of the market economic order. "Fang Yi finished speaking and paused.