Lawyer's character

Chapter 823 One Year

Fang Yi then expressed his defense opinion: "In this case, Chu Guangxian prepared some traditional Chinese medicine into capsules according to his own formula in his clinic and sold them to specific patients for treatment. Although these capsules were also sold to patients, after all, they were just It is done on a very narrow scale and for the specific patients who come for treatment.

The drugs prescribed by the defendant were for diagnosis and treatment and were not simply sold to the public. The quantity, scale and scope of their production and sales were far from reaching the level of entering the pharmaceutical market circulation field.

In other words, the defendant’s behavior is not enough to disrupt the market economic order, and the defendant’s behavior does not fall within the ‘production and sales’ behavior in the crime of producing and selling counterfeit drugs.

2. The defendant manufactures and sells drugs based on folk prescriptions and folk prescriptions, and has no subjective intention to produce counterfeit drugs.

The crime of producing and selling counterfeit drugs is an intentional crime. The perpetrator must subjectively know that the drugs are counterfeit and intentionally produce and sell them to constitute this crime. If the perpetrator does not know or is not subjectively aware that the drugs he produces and sells are counterfeit drugs, it does not constitute criminal intent.

Folk prescriptions and folk prescriptions are medicinal prescriptions or treatment methods that are spread among the people. They often have a long history and a broad mass base, which is why they are still passed down to this day.

Folk prescriptions and folk prescriptions, especially in the vast rural areas, have a certain existence foundation. Many people, whether they are medical practitioners or patients, have the idea that "folk prescriptions can cure serious diseases" and do not regard folk prescriptions and prescriptions as fake medicines.

The defender believes that for such a complex social problem, we cannot simply use criminal penalties at will, otherwise it will violate the modest spirit of criminal law.

The defendant in this case obtained the prescription from an old professor while studying in a medical school. This acquisition method itself would give him a certain inner confirmation of the effect of the prescription.

Since then, the defendant has used the prescription in clinical practice and found no adverse reactions, making him even more convinced of the efficacy of the prescription.

During the process of the defendant's diagnosis and treatment of the victim, the defendant only increased the dose after the medication was effective, which resulted in the victim's death from poisoning.

Looking at the entire case, although the defendant produced and sold the drug without obtaining approval in accordance with relevant regulations, he subjectively did not believe that what he produced and sold was a counterfeit drug, and always firmly believed that the drug would not harm the victim. cause some damages. Therefore, the defendant did not have any subjective intention to produce and sell counterfeit drugs.

3. The behavior of the defendant in this case conforms to the characteristics of the crime of medical malpractice and should be punished as such.

Article 335 of the Criminal Law stipulates that medical personnel who cause the death of a patient or seriously damage the health of a patient due to serious irresponsibility shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. The behavior of the defendant Chu Guangxian in this case conforms to the basic characteristics of the crime of medical malpractice:

First of all, Chu Guangxian is a clinic physician and has the medical qualification and license of a physician. He is a professional medical staff who has obtained the qualification of a practicing physician in accordance with the law and is registered to practice. His status complies with the requirements for practicing physician qualifications in the "Law of the People's Republic of China on Practicing Physicians". The relevant provisions belong to medical personnel.

Secondly, the defendant Chu Guangxian, as a doctor, secretly prepared medicines for diagnosis and treatment without the approval of the national health administration department during his legal diagnosis and treatment process, seriously violating medical regulations and causing serious consequences of the patient's death.

The crime of medical malpractice is a crime of negligence, which includes negligence and overconfidence.

In this case, the defendant Chu Guangxian has professional medical knowledge and rich diagnosis and treatment experience, and is a professional medical staff.

During the medication process, he did not let the victim take a large amount of medication at the beginning, but gradually increased the dosage, indicating that he had a certain understanding of the toxic and side effects of the drug.

However, after long-term clinical use and a small-dose trial by the victim himself, he found no obvious adverse reactions and indeed had certain curative effects, so he relaxed his vigilance and believed that the drug would not cause harm to the victim. The defendant's mentality of increasing the dose given to the victim, which eventually led to his death, should be considered an overconfidence fault.

In addition, from an objective aspect, the defendant Chu Guangxian, as an individual physician, practiced in accordance with the registered practice location, practice category, and scope of practice, and engaged in corresponding medical services. In the process, he used it for the victim without approval from the national health administration department. , privately prepared drugs caused the death of a patient, which was a serious irresponsible manifestation and objectively fully consistent with the characteristics of the crime of medical malpractice.

In summary, the defender believes that the behavior of the defendant Chu Guangxian in this case should constitute the crime of medical malpractice. In view of his good attitude in pleading guilty and showing remorse, he actively rescued the victim after the incident, surrendered, and compensated the victim’s family. , recommended that the court give him a lenient punishment and sentence him to six months in prison. complete. "

Fang Yi's suggestion of a prison term was based on discussions with Chu Hua and his mother. The defendant Chu Guangxian illegally used folk medicines to diagnose and treat patients, which eventually led to the patient's death. This is a fact. It is obviously unrealistic to suggest that the court sentence the defendant to criminal detention. Therefore, the final recommended sentence is six months in prison.

After the trial was completed, the presiding judge soon pronounced the verdict.

The county court held that the defendant Chu Guangxian used folk prescriptions to prepare capsules for patients to take. His intention was to treat the patients and hope to have therapeutic effects. Obviously the defendant did not think it was a counterfeit drug, so defendant Chu Guangxian’s behavior did not constitute the crime of producing and selling counterfeit drugs.

However, as a medical staff, Chu Guangxian secretly prepared capsules containing the toxic substance "aconitine" and increased the dosage during diagnosis and treatment, causing Lan Zhenguo's poisoning and death. His behavior constituted the crime of medical malpractice.

Considering that Chu Guangxian actively rescued the victim, surrendered, and actively compensated the victim for his economic losses, in accordance with the provisions of Article 335 and Paragraph 1 of Article 67 of the Criminal Law, defendant Chu Guangxian was sentenced to a lighter sentence. Guangxian was sentenced to one year in prison.

After the criminal judgment was issued, the defendant did not appeal and the procuratorate did not protest, so the judgment came into effect. This case is finally settled, but of course this is all for later.

"Master, what do you think of the sentence sentenced by the county court today?" Yun Qiao asked while driving.

"Although we have not adopted our sentencing recommendations, it is expected. What do you think?" Fang Yi sat in the passenger seat and turned his head and asked.

"The defendant surrendered himself. Although he did not receive a letter of understanding, he actively compensated the victim's family... I think this sentence is a bit long and should be lowered." Yun Qiao said to himself.

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