Does selling ancestral plasters constitute the crime of illegal medical practice?

Selling ancestral plasters is very common on the streets, especially on the streets of small towns and rural areas, many vendors set up stalls sell medicines with the signboards of ancestral plasters, and the production of these ancestral plasters is not very formal and the quality is uneven, so will selling ancestral plasters constitute the crime of illegal medical practice? For this problem, the following has been sorted out, I hope it will be helpful to you.

Article 336 of the Criminal Law: Where a person who has not obtained a doctor's license illegally practices medicine, and the circumstances are serious, is to be sentenced to up to three years imprisonment, short-term detention or controlled release, and/or a fine; where the patient's physical health is seriously harmed, a sentence of between three and ten years imprisonment and a concurrent fine is to be given; and where the death of the patient is caused, a sentence of 10 or more years imprisonment and a concurrent fine is to be given.

Where a person who has not obtained a doctor's license performs birth control reversal surgery, sham birth control surgery, pregnancy termination surgery, or removal of an intrauterine device for others without authorization, and the circumstances are serious, he is to be sentenced to up to three years imprisonment, short-term detention or controlled release, and/or a fine; where the patient's physical health is seriously harmed, a sentence of between three and ten years imprisonment and a concurrent fine is to be given; and where the death of the patient is caused, a sentence of 10 or more years imprisonment and a concurrent fine is to be given.

It can be seen that the crime of illegal practice of medicine does not define the crime of selling drugs as a crime or a non-crime. First of all, selling drugs is a medical act; secondly, to see whether you have obtained the qualification to practice as a doctor; Finally, in terms of consequences, whether the circumstances are serious. If the circumstances are serious, it constitutes the crime of illegal medical practice.

2. The boundary between the crime of illegal practice of medicine and the crime of medical malpractice.

The crime of illegal medical practice and the crime of medical malpractice are both crimes against public health, and both may objectively cause the death of the patient or seriously damage the health of the patient

1) The objective aspect is different. In the objective aspect, the former is manifested as violating the provisions of the state's laws and regulations on medical management, illegally practicing medicine, and the circumstances are serious. The latter is objectively manifested in the fact that medical personnel violate rules and regulations in the process of legitimate diagnosis and care, are seriously irresponsible, and cause the death of the patient or seriously damage the health of the patient.

2) The main body is different. The subject of the former is a person who is not qualified to practice as a doctor, while the subject of the latter is a medical officer who has obtained a doctor's license.

3) The subjective aspect is different. In the former, the psychological attitude towards the perpetrator of causing the death of the patient or seriously harming the patient's physical health can be either negligence or indirect intention, but for the violation of the medical management system, it is direct intention. The latter's psychological attitude towards causing serious adverse consequences can only be negligence.

3. Serious circumstances of the crime of illegally practicing medicine.

1) Causing the patient to suffer from mild disability or organ and tissue damage resulting in general dysfunction;

2) Causing the spread or epidemic of Class A infectious diseases, or there is a risk of transmission or epidemic;

3) The use of counterfeit drugs, inferior drugs, or sanitary materials and medical devices that do not meet the standards prescribed by the state, which is sufficient to seriously endanger human health;

4) Illegally practicing medicine again after being punished twice by the administrative department of health;

5) Other situations where the circumstances are serious.

Legal analysis: Whether the sale of plasters is an illegal practice of medicine depends on the specific circumstances, and illegal practice of medicine refers to engaging in diagnosis and treatment activities without doctor's qualifications, including engaging in diagnosis and treatment activities in medical institutions and engaging in diagnosis and treatment activities without authorization. Those who have the qualifications to practice medicine but have not obtained a license to practice medicine are not illegal medical practitioners as used in this article.

Legal basis: Article 336 of the Criminal Law of the People's Republic of China: Where a person who has not obtained a doctor's license illegally practices medicine, and the circumstances are serious, is to be sentenced to up to three years imprisonment, short-term detention or controlled release, and/or a fine; where the patient's physical health is seriously harmed, a sentence of between three and ten years imprisonment and a concurrent fine is to be given; and where the death of the patient is caused, a sentence of 10 or more years imprisonment and a concurrent fine is to be given.

Where a person who has not obtained a doctor's license performs birth control reversal surgery, sham birth control surgery, pregnancy termination surgery, or removal of an intrauterine device for others without authorization, and the circumstances are serious, he is to be sentenced to up to three years imprisonment, short-term detention or controlled release, and/or a fine; where the patient's physical health is seriously harmed, a sentence of between three and ten years imprisonment and a concurrent fine is to be given; and where the death of the patient is caused, a sentence of 10 or more years imprisonment and a concurrent fine is to be given.

It is illegal to sell ancestral black plaster without obtaining the relevant permission. Only those who have obtained the relevant drug production and operation license can be sold. The marketing authorization holder of a drug may sell the drugs for which it has obtained a drug registration certificate on its own, or may entrust a drug business enterprise to sell them.

If a marketing authorization holder engages in drug retail activities, it shall obtain a drug business license.

If the marketing authorization holder sells the drug on its own, it shall meet the conditions specified in Article 52 of this Law; If the sales are entrusted, the qualified drug business enterprises shall be entrusted. The marketing authorization holder and the entrusted business enterprise shall sign an entrustment agreement and strictly perform the obligations agreed in the agreement. If an individual who sells plasters has pharmacist qualifications; Have the appropriate business premises, equipment, storage facilities and hygienic environment; There is a quality management organization or personnel; After the approval of the drug regulatory department, it is not illegal to sell ointment.

According to the law, the following conditions must be met to start a pharmaceutical business enterprise:

1. Have qualified pharmaceutical technicians in accordance with the law.

2. Have a business premises, equipment, storage facilities and sanitary environment suitable for the drugs operated.

3. Have a quality management organization or personnel suitable for the drugs handled.

4. Rules and regulations for the quality of pharmaceutical products.

Article 14 of the Drug Administration Law stipulates that the establishment of a drug wholesale enterprise shall meet the requirements of the reasonable layout of drug wholesale enterprises in provinces, autonomous regions and municipalities directly under the Central Government, and meet the following setting standards:

1) Have rules and regulations for the quality of the drugs handled;

2) The enterprise, the legal representative of the enterprise, the person in charge of the enterprise, or the person in charge of quality management do not have the circumstances specified in Articles 75 and 82 of the Drug Administration Law;

3) Have a certain number of licensed pharmacists suitable for the scale of operation. The person in charge of quality management must have a university degree or above and must be a licensed pharmacist;

4) It has a room temperature storage, cool storage and cold storage that can ensure the quality requirements of drug storage and adapt to its business varieties and scales. The warehouse has special shelves suitable for drug storage and devices and equipment to realize the modern logistics system of drug storage, transmission, sorting, shelving and delivery;

Legal basis

Drug Administration Law of the People's Republic of China

Article 51.

To engage in drug wholesale activities, it shall be approved by the people's drug regulatory department of the province, autonomous region or municipality directly under the Central Government to obtain a drug business license. To engage in drug retail activities, it shall be approved by the local people's drug regulatory department at or above the county level where it is located, and obtain a drug business license. Without a drug business license, no drug shall be dealt.

The drug business license shall indicate the validity period and business scope, and shall be re-examined and issued upon expiration. In addition to the conditions stipulated in Article 52 of this Law, the drug regulatory department shall also follow the principle of facilitating the purchase of drugs by the masses in the implementation of drug business licenses.

If an individual sells plasters, if the plasters sold are fake, it is a crime, and may even constitute the crime of selling counterfeit medicines. if this crime is constituted, a sentence of up to three years imprisonment or short-term detention is generally given, and a concurrent fine; and where serious harm is caused to human health or there are other serious circumstances, a sentence of between three and ten years imprisonment and a concurrent fine is to be given.

Legal basisArticle 141 of the Criminal Law.

Those who produce or sell counterfeit drugs are to be sentenced to up to three years imprisonment or short-term detention and a concurrent fine; and where serious harm is caused to human health or there are other serious circumstances, a sentence of between three and ten years imprisonment and a concurrent fine is to be given. and where death is caused or there are other especially serious circumstances, a sentence of 10 or more years imprisonment, life imprisonment or death is to be given, and a concurrent fine or confiscation of property is to be given.

Where the personnel of the drug-using unit clearly know that it is counterfeit drugs and provide them to others for use, punishment shall be given in accordance with the provisions of the preceding paragraph.

Whether the sale of plasters is an illegal practice of medicine depends on the specific circumstances, and illegal practice of medicine refers to engaging in diagnosis and treatment activities without doctor's qualifications, including engaging in diagnosis and treatment activities in medical institutions and engaging in diagnosis and treatment activities without authorization. Where a doctor, Jian Jing, is qualified to practice medicine but does not have a license to practice medicine, it is not an illegal practice of medicine as used in this article.

Legal basis: Article 336 of the Criminal Law of the People's Republic of China: Where a person who has not obtained a doctor's license illegally practices medicine, and the circumstances are serious, is to be sentenced to up to three years imprisonment, short-term detention or controlled release, and/or a fine; where the patient's physical health is seriously harmed, a sentence of between three and ten years imprisonment and a concurrent fine is to be given; and where the death of the patient is caused, a sentence of 10 or more years imprisonment and a concurrent fine is to be given.

Where a person who has not obtained a doctor's license performs birth control reversal surgery, sham birth control surgery, pregnancy termination surgery, or removal of an intrauterine device for others without authorization, and the circumstances are serious, he is to be sentenced to up to three years imprisonment, short-term detention or controlled release, and/or a fine; where the patient's physical health is seriously harmed, a sentence of between three and ten years imprisonment and a concurrent fine is to be given; and where the death of the patient is caused, a sentence of 10 or more years imprisonment and a concurrent fine is to be given.