生产、销售假药罪若干问题研究

发布时间：2019-01-26 18:12

【摘要】：2011年《刑法修正案(八)》的颁布对生产、销售假药罪进行了重大修改,生产、销售假药罪从危险犯变为行为犯。该条删除了生产、销售假药罪必须“足以严重危害人体健康”的要求,增设了“其他严重情节”“其他特别严重情节”的处罚,并修改了罚金刑的相关规定。本文对该条款修改的立法意图、对修改后生产、销售假药罪的犯罪构成及该罪在司法实践中的若干疑难问题进行了研究,并对该罪的立法不足及完善提出了建议。在我国构建以人为本和谐社会的大背景下,对该条款的修改,有效的克服了97刑法141条的不足,有力的贯彻了宽严相济的刑事司法政策,同时加强对生产、销售假药罪的处罚力度,符合民生犯罪的立法诉求。笔者认为,生产、销售假药罪的犯罪主体可以是任何具有刑事责任能力的个人或单位,并不需要法定的特殊身份,同时医疗机构有配制或销售假药的行为也可构罪。制售假药的行为人主观上应是直接故意或间接故意,对其生产、销售的假药是一种明知的状态,且对制售假药行为持希望或放任的态度,过失不构成该罪。本罪的客体是假药①。本罪修正后虽于2011年5月已正式实施,但该罪在司法实践中还存在诸多疑难问题及争议,笔者对这些疑难问题进行了逐一阐述和分析。笔者认为并非所有生产、销售假药的行为一律入罪,符合刑法13条但书规定的,同样可以不做刑事处罚；生产、销售假药罪入罪门槛的大大降低,可能导致全国范围内此类案件的大幅度增加,对药品监管部门提出了更高要求,如何判断行为人的行为是否构罪?哪些行为人的行为应当作出行政处罚,哪些应当移交司法机关处理?笔者认为首先药监部门要学习该条款的内容,改变执法观念,对涉罪案件及时移交司法机关,同时要建立药监部门与司法机关的协作工作机制,有效保障行政执法与刑事司法的有效斜接。刑法修正案对生产、销售假药罪做出的重大修改,有力的打击了制售假药犯罪行为。但该法规规定较为概括,司法实践中容易导致司法擅断,同时该条款增加的“其他严重情节”、“其他特别严重情节”的规定没有及时出台相关的司法解释予以配套,在司法实践中,司法人员难以准确的运用,因此急迫需要最高司法机关对该情节规定制定相应的司法解释,以便该规定在司法实践中更易操作,笔者就该罪的完善提出了具体建议,以便司法实践中以参考。同时笔者建议借鉴其他国家做法,在未来对本罪修改时借鉴引入对制售假药者资格刑和名誉刑的处罚,行为人一旦有制售假药的行为,就要剥夺其在限定时间内从事生产或销售药品的经营者资格,并且在公共媒体上发布制售假药的企业和经营者的名称,加大对制售假药犯罪分子的打击力度,剥夺或限制其再犯罪能力。
[Abstract]:The promulgation of "Criminal Law Amendment (8)" in 2011 has made a major amendment to the crime of producing and selling counterfeit drugs, and the crime of producing and selling counterfeit drugs has changed from a dangerous crime to an act crime. This article deletes the requirement that the crime of producing and selling counterfeit drugs must be "sufficient to seriously endanger human health", adds the punishment of "other serious circumstances" and "other especially serious circumstances", and amends the relevant provisions of the fine. This paper studies the legislative intention of the amendment of this clause, the crime constitution of the crime of producing and selling counterfeit drugs after the modification and some difficult problems of the crime in the judicial practice, and puts forward some suggestions on the insufficiency and perfection of the legislation of the crime. Under the background of constructing a people-oriented harmonious society in our country, the modification of this article effectively overcomes the shortcomings of article 141 of 97 Criminal Law, and carries out the criminal justice policy of combining leniency and severity, and strengthens the production at the same time. The punishment intensity of the crime of selling counterfeit medicine accords with the legislative appeal of the crime of people's livelihood. The author believes that the criminal subject of the crime of producing and selling counterfeit drugs can be any individual or unit with criminal responsibility and does not need a special legal identity. At the same time, the behavior of dispensing or selling counterfeit drugs in medical institutions can also constitute a crime. The perpetrator of making and selling counterfeit drugs should be directly intentionally or indirectly intentionally. The fake medicine produced and sold is a state of knowledge and holds a hopeful or laissez-faire attitude to the production and sale of counterfeit drugs. Negligence does not constitute the crime. The object of this crime is counterfeit medicine 1. Although this crime has been formally implemented in May 2011, there are still many difficult problems and disputes in judicial practice. The author expounds and analyzes these difficult problems one by one. The author believes that not all production, the sale of counterfeit drugs are all criminalized, in accordance with the Criminal Law 13 proviso, the same can not do criminal punishment; Production, sale of counterfeit drugs crime threshold greatly reduced, which may lead to a large increase in such cases nationwide, drug regulatory departments put forward a higher demand, how to judge the behavior of the perpetrator whether to constitute a crime? Which actors should be given administrative punishment, which should be transferred to the judicial organs? The author thinks that first of all, the drug control department should study the contents of the article, change the concept of law enforcement, transfer the crime cases to the judicial organ in time, and establish a cooperative working mechanism between the drug supervision department and the judicial organ. Effective protection of administrative law enforcement and criminal justice effective oblique connection. The amendment of the Criminal Law has made a major amendment to the crime of producing and selling counterfeit drugs, which has effectively cracked down on the crime of manufacturing and selling counterfeit drugs. However, the provisions of this law are relatively general, and judicial practice is apt to lead to judicial arbitrariness. At the same time, the provisions of "other serious circumstances" and "other especially serious circumstances" added in this provision have not been matched by relevant judicial interpretations in time. In judicial practice, judicial personnel are difficult to use accurately, so it is urgent for the highest judicial organ to formulate a corresponding judicial interpretation of the circumstances in order to make the provision easier to operate in judicial practice. The author puts forward specific suggestions on the perfection of the crime so as to make reference in judicial practice. At the same time, the author suggests to draw lessons from the practice of other countries and introduce the penalty of qualification and reputation of the manufacturer and seller of counterfeit drugs when the crime is revised in the future, once the perpetrator has the behavior of making and selling counterfeit medicine, It is necessary to deprive them of their qualifications to engage in the production or sale of pharmaceutical products within a limited period of time, and to publish on public media the names of the enterprises and operators who manufacture and sell counterfeit drugs, so as to step up their efforts to crack down on criminals who manufacture and sell counterfeit drugs. To deprive or limit his ability to commit another crime.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D924.3

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