"Presiding Judge and Judge: The prosecutor thinks,...... Although the defendant Tao Ji had obtained medical qualifications and medical practitioner qualifications, he did not obtain a medical institution's practice license, and his conduct constituted the crime of illegal medical practice.

The defendant's conduct has already violated the provisions of Article 336, Paragraph 1 of the Criminal Law, and we recommend that the defendant Tao Ji be sentenced to fixed-term imprisonment of not less than 10 years and a fine. Complete. The prosecutor commented.

……

"The defendant's defender gives his defense opinion." The presiding judge looked at the defense bench.

"Presiding Judge and Judge: The defender believes that the defendant Tao Ji holds a doctor's qualification and obtained a medical practitioner's qualification certificate in 1999, and that he is not the subject of the crime of illegal medical practice as provided for in the first paragraph of Article 336 of the Criminal Law, and that his conduct of receiving medical treatment at home does not constitute the crime of illegal medical practice, for the following reasons:

1. The prosecutor's allegations are inconsistent with the intent of the legislation.

The defender believes that the crime of illegally practicing medicine is a new crime added when the Criminal Law was revised in 1997, and its applicable targets are mainly those who do not possess professional medical knowledge and defraud people everywhere in society under the pretext of treating diseases and saving people, deceive the people, and even infringe on the lives and health of the people.

Illegal practice of medicine not only violates the order of medical management, but also endangers the lives and health of an unspecified number of patients in society, so the crime of illegal practice of medicine is a crime that endangers public health.

It can be seen that the purpose of the Criminal Law in setting up the crime of illegal practice of medicine is not how to practice medicine, but who is practicing medicine; It is aimed at people who have no medical expertise, and in the name of treating diseases and saving people, they cheat money.

2. The qualification of a medical practitioner has the same meaning as the qualification of a doctor

There is no essential difference between the 'doctor's qualifications' as provided for in the first paragraph of Article 336 of the Criminal Law and the 'qualifications for practicing physicians' in the Law on Medical Practitioners (the Physicians Law came into force on March 1, 2022 and the Law on Medical Practitioners was repealed) in terms of legislative intent, but the expressions are different. The aim is to require that the person who sees the patient should have nationally recognized medical expertise and skills.

Article 336 of the Criminal Law clearly stipulates that only when a person who has not obtained a doctor's qualification to practice medicine illegally practices medicine does the circumstances be serious, that is, the crime is only against a person who illegally practices medicine without obtaining a doctor's license.

The Medical Practitioners Act, which came into effect on 1 May 1999, requires physicians to be registered, and the prerequisite for practicing medicine is that they must be qualified as medical practitioners.

It can be seen that the purpose of the above two legal provisions is actually the same.

In other words, a person who holds a medical practitioner's qualification should not fall within the scope of the crime of illegal practice of medicine under the first paragraph of Article 336 of the Criminal Law.

3. From obtaining the qualification of a medical practitioner to actually practicing medicine, the registration procedures required are administrative measures.

The qualification of a licensed physician refers to the knowledge, skills and abilities that should be possessed by an independent practitioner or engaged in medical professional and technical work. Medical practitioner qualifications are not related to whether or not the person is currently practicing medicine.

According to the provisions of the Law on Medical Practitioners, any person with the qualification of a medical practitioner, except under special circumstances prescribed by law, as long as he applies for registration with the health administrative department of the people's government at or above the county level where he is located, the health administrative department accepting the application shall approve the registration within 30 days from the date of receipt of the application and issue a physician's practice certificate uniformly printed by the health administrative department under the State Council.

From the above provisions, it is not difficult to see that from obtaining the qualification of a medical practitioner to actually practicing medicine, only registration procedures are required, which is purely an administrative means and has nothing to do with whether it constitutes illegal medical practice.

In this case, Tao Ji obtained a medical practitioner's certificate from the Ministry of Health of the Central People's Government in his early years, and in 1999 he obtained a medical practitioner's qualification certificate in accordance with relevant regulations, and practiced until his retirement.

Up to now, the defendant Tao Ji still has the qualification of a licensed 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, and this qualification has not disappeared or been revoked because of his retirement.

In fact, the qualifications held by the defendant as a licensed physician are the same as those of lawyers, and all those who have passed the corresponding national qualification examination indicate that the state recognizes them as having the knowledge and skills to engage in relevant professional work. Whether or not they are currently engaged in or intend to engage in such work does not affect the acquisition of their qualifications. If the 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 with medical qualifications, and he does not belong to the criminal subject of the crime of illegal medical practice as provided for in the first paragraph of article 336 of the Criminal Law. The defense argued that the defendant Tao Ji was not guilty. Complete. Fang Yi expressed his defense opinion.

The reason why Fang Yi mentioned the lawyer qualification access system is because the judge and the public prosecutor opposite are both legal people, and their understanding of the lawyer access system is deeper and more thorough than that of the physician access system. This is more conducive to the judge's understanding of the purpose of the health department's establishment of medical practitioner qualifications.

Regardless of whether the judge understood the purpose of the establishment of the qualification of a medical practitioner, Fang Yi felt that it was necessary to explain it to the court, because this is not something that ordinary people can understand, nor is it understood by legal professionals.

"The prosecutor may respond to the defender's arguments." The presiding judge lowered his head and didn't know what he was writing, then looked up at the prosecutor's bench and said.

In response to the defender's defense, the prosecutor mainly expressed the following opinions:

According to the provisions of the Law on Medical Practitioners, a person who has obtained the qualification of a medical practitioner may apply for registration with the health administrative department of the people's government at or above the county level where he is located.

After registration, physicians may 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 businesses. If there is a change in the above-mentioned matters, the registration shall be changed with 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 regulate the practice of medical personnel and avoid the proliferation of black clinics. At the same time, it is also to protect the health of the people.

It can be seen from this that without the registration of a physician, even if a medical practitioner qualification certificate is obtained, he is not allowed to engage in the practice of physicians, and if a practitioner violates the above provisions, it constitutes illegal practice of medicine, and if the circumstances are serious, it constitutes the crime of illegal practice of medicine.

In this case, although the defendant had obtained the qualification of a medical practitioner, he had not registered with the corresponding health administrative department, and caused the death of the patient while receiving a doctor without permission, and his behavior constituted the crime of illegal medical practice. Complete. The inspector responded.

"The defender may respond to the prosecutor's opinion." After listening to the prosecutor's response, the presiding judge looked at the defense bench and continued.

(End of chapter)