Lawyers are the backbone of a law firm, and they are professionals who rush to the front line, but there are still many jobs that need to be done around lawyers in the law firm, such as personnel, administration, finance, etc., these people are considered second-line, are an indispensable part of the law firm, and serve lawyers.

In order to improve the efficiency of lawyers, in addition to the internal office system and electronic seals, there is also the contact information of the public procuratorate and law enforcement organs commonly used by litigation lawyers in their work.

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The case of Dr. Chu's production and sale of counterfeit drugs has finally been heard. Early in the morning, Fang Yi and Yun Qiao went to the county court for a trial.

Because the facts of the case were simple and the defendant Chu Guangxian recognized all the facts of the case, the previous case investigation procedures went very quickly, and I will not repeat them here. The focus of this case is on the characterization of the case.

"The facts of this case have been investigated, the court investigation has been completed, and the court arguments are now begining. Court debates revolve around disputed facts that have not been certified by the court and how the law should be applied based on the facts.

The prosecutor will speak first. The presiding judge said.

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

According to the second paragraph of Article 10 of the "Opinions on Rectifying and Regulating the Drug Market" jointly issued by the State Council Reform Office, the State Development 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 distribute commonly used and first-aid drugs approved by the provincial health and drug regulatory departments.

There are also relevant provisions in the "Report on the Approval of the Ministry of Health by the State Council on the Issue of Allowing Individual Practitioners to Practice Medicine", and the prescription of the clinic is given by the local designated medical institution.

According to Article 27 of the Regulations for the Implementation of the Drug Administration Law of the People's Republic of China, outpatient departments, clinics and other medical institutions set up by individuals shall not be equipped with drugs other than commonly used drugs and first-aid drugs. The scope and varieties of commonly used drugs and first-aid drugs shall be prescribed 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 regulatory department of the people's government at the same level.

Article 62 of the Regulations stipulates that if the outpatient departments, clinics and other medical institutions set up by individuals provide patients with drugs that exceed the prescribed scope and variety, they shall be punished in accordance with the provisions of the Drug Administration Law.

According to 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 forbidden to produce or import drugs without obtaining drug approval certificates; It is forbidden to use APIs, 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 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's preparation license shall be ordered to close down, confiscate the illegally produced and sold drugs and illegal gains, and impose a fine of not less than 15 times but not more than 30 times the value of the illegally produced and sold drugs (including sold and unsold drugs, the same below); If the value of the goods is less than 100,000 yuan, it shall be calculated as 100,000 yuan.

According to the above provisions, in the course of operating the clinic, the capsules used by the defendant to the victim had not been inspected, approved or approved by any drug regulatory authority, and the prescription was not given by a designated medical institution, let alone met national standards, so the drugs prepared by the defendant were counterfeit.

In addition, in this case, Chu Guangxian not only prescribed to the patient in the course of diagnosis and treatment, but also sold homemade drugs to the patient, which is different from the prescribing behavior of ordinary doctors.

If the patient only prescribes drugs and asks them to go to pharmacies or hospitals (clinics) to buy drugs on their own, and the production, purchase and sale of these drugs are not directly related to the doctor, then the doctor is only performing his medical duties, and he is only responsible for his prescriptions, even if the drugs sold to the patient are counterfeit.

However, the defendant in this case sold the self-formulated over-the-counter medicine directly to the patient, which was a self-production and self-sale act, and a relationship between the defendant and the patient who purchased the drug had formed between the producer, the seller and the consumer. Therefore, Chu Guangxian's behavior is a production and sales behavior.

In summary, the defendant clearly knew that the drugs he prepared might endanger the health of the patients, but adopted a laissez-faire attitude, causing serious consequences such as poisoning and death of the patients, and his conduct constituted the crime of producing and selling counterfeit drugs.

In accordance with Article 141 of the Criminal Law, we recommend that the court impose a fixed-term imprisonment of 15 years on the defendant. Complete. The male prosecutor spoke.

Previously, Fang Yi had communicated with the prosecutor twice, but both sides had their own reasons, so Fang Yi failed to move the prosecutor.

"The defendant is now defending himself." The presiding judge looked at Chu Guangxian in the defendant's seat.

"I don't accept the allegations, I don't produce or sell counterfeit medicines, I just prepare medicines to relieve the pain of patients, and the medicines I prepare do not go to the market, only for patients with rheumatism.

I have been practicing medicine for many years, and it is the doctor's job to treat the sick and save people.

I admit that in the process of preparing the medicine, I neglected the patient's other underlying diseases, did not grasp the dosage accurately, and used the medicine improperly, but this prescription can indeed cure the disease, not a fake medicine, and it does cure the patient......

I have nothing to say about the medicine I prescribed to kill people, but the prescription is true, it is all left by my ancestors, and I ask the judge to punish me lightly according to the law. Chu Guang first argued.

He always felt that the prescription was a good prescription, but he didn't grasp the dosage well.

"The defendant's defender gives his defense opinion." After a moment, the presiding judge looked up at Fang Yi.

"Presiding judge and adjudicator: The defender believes that the defendant Chu Guangxian is a doctor with practicing qualifications, and his conduct of making drugs based on folk prescriptions and home remedies for diagnosis and treatment and causing the death of patients does not constitute the crime of producing and selling counterfeit drugs, but should constitute the crime of medical malpractice. The specific reasons are as follows:

1. The act of a doctor making a drug based on a folk prescription or home remedy for diagnosis and treatment shall not constitute the crime of producing or selling counterfeit drugs.

Although the purpose of the defendant to sell drugs to patients was to make money through medical activities. However, the drug is only used for specific patients, and has not been officially sold in the market, let alone formed a certain scale of production and sales.

The defendant's conduct is different from the "production and sale" of the crime of producing and selling counterfeit drugs as provided for in article 141 of the Criminal Law.

The production and sale of counterfeit drugs in the crime of producing and selling counterfeit drugs should be market behavior, that is, such behavior should be an economic activity based on market circulation, aimed at achieving profits, and based on a certain relationship between supply and demand.

This is because only economic behavior that is in a certain market economic order may violate the basic rules of normal market economic activities and constitute an infringement of the market economic order. After Fang Yi finished speaking, he paused.

(End of chapter)