非法行医罪主体问题研究

发布时间：2018-11-10 06:56

【摘要】：随着我国医疗卫生体制改革的不断深入以及医疗卫生事业的发展进步,越来越多的人拥有了高质量的公共卫生资源,享受到了高水平的医疗救助服务。然而,我国的医疗卫生现状仍旧不容乐观。非法行医犯罪屡禁不止,在社会上造成了严重的危害和恶劣的影响,给我国的公共卫生管理秩序以及公众的生命健康安全埋下了一颗“定时炸弹”。1997年,我国新《刑法》增设了非法行医罪,将医生执业资格的具备与否作为判断行为人能否构成该罪主体的标准。但是,由于法律条文和司法解释均未对非法行医罪的主体资格进行明确认定,加之理论界和实务界也对此持有不同的观点,以至于在司法实践中仍旧存在着诸多大大小小的认定难题。本文从非法行医罪的立法沿革以及现状入手,结合相关的各种理论学说,重点针对已获得医生执业资格、未获得医生执业资格两种情形来对非法行医罪的主体问题及其认定标准进行深入地剖析和探讨,以期能对该罪有更加准确的认知,并对完善相关立法提出一些切实可行的建议。论文主要由四部分组成:第一部分,我国非法行医罪的立法沿革以及现状。主要对新中国成立前及成立后的非法行医罪立法进行了简要概括,对我国目前非法行医罪现状进行了阐述。第二部分,非法行医罪主体概述。首先阐明研究非法行医罪主体的意义,其次列明学术界在“非法行医罪主体应当如何认定”这一问题上存在的争议和以及达成的共识,最后给出非法行医罪主体的认定标准。第三部分,已获得医生执业资格情形下的非法行医犯罪主体认定。主要以“三超执业”这一典型情形为例,针对行医主体在超类别执业、超范围执业以及超地点执业三种情形下所从事的医疗活动是否构成非法行医罪进行了阐释及认定。第四部分,未获得医生执业资格情形下的非法行医犯罪主体认定。主要以乡村医生、实习医生两种典型的医疗工作者为例,对他们所从事的医疗活动是否构成非法行医罪进行了阐释及认定。
[Abstract]:With the deepening of medical and health system reform and the development of medical and health services, more and more people have high quality public health resources and enjoy high level of medical assistance services. However, China's medical and health status is still not optimistic. The crime of illegal practice of medicine has been repeatedly prohibited, which has caused serious harm and bad effects on the society. It has planted a "time bomb" for the public health management order and the safety of public life and health in our country. In 1997, The new Criminal Law of our country has added the crime of illegal practice of medicine, taking the qualification of doctors as the criterion to judge whether the perpetrator can constitute the subject of the crime. However, since neither the legal provisions nor the judicial interpretation have clearly recognized the subject qualification of the crime of illegal practice of medicine, the theorists and practitioners also hold different views on it. Even in judicial practice, there are still many big and small problems. This article starts with the legislative evolution and current situation of the crime of illegal practice of medicine, combining with various relevant theories and theories, focusing on the qualifications of doctors who have been granted medical practice. In order to have a more accurate understanding of the crime and put forward some practical suggestions to perfect the relevant legislation, this paper makes a deep analysis and discussion on the subject of the crime of illegal medical practice and its identification standard without obtaining the medical qualification of a doctor. The thesis consists of four parts: the first part, the legislative evolution and current situation of the crime of illegal practice of medicine in China. This paper briefly summarizes the legislation of the crime of illegal practice of medicine before and after the founding of New China, and expounds the present situation of the crime of illegal practice of medicine in our country. The second part is an overview of the subject of the crime of illegal practice of medicine. First, it clarifies the significance of the research on the subject of the crime of illegal practice of medicine, secondly, it sets out the dispute and the consensus reached on the issue of "how the subject of the crime of illegal practice of medicine should be recognized" in academic circles, and finally gives the standard of the subject of the crime of illegal practice of medicine. The third part, has obtained under the doctor practice qualification situation illegal medical practice crime subject confirmation. Taking the typical case of "three super practice" as an example, this paper explains and determines whether the medical activities engaged in by the subject of medical practice in the three situations of super-category practice, over-range practice and over-place practice constitute the crime of illegal practice of medicine. The fourth part, the criminal subject of illegal practice under the condition of not obtaining the medical qualification. Taking rural doctors and interns as examples, this paper explains whether the medical activities they engage in constitute the crime of illegal practice of medicine.
【学位授予单位】：重庆大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.3

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