医疗领域的商业贿赂犯罪侦防对策研究

发布时间：2018-06-26 13:41

本文选题：商业贿赂 + 医疗领域　；参考：《西南政法大学》2008年硕士论文

【摘要】： 商业贿赂在中国医疗行业已成为行规和企业运行潜规则,商业贿赂是一种典型的不正当竞争,是指经营者为销售或者购买商品而采用财物或者其他手段贿赂对方单位或者个人的行为。本质是通过贿赂手段,获得交易机会,损害其他经营者合法权益,扰乱社会经济秩序。医药购销领域的商业贿赂,加剧了群众看病难、看病贵问题,损害了党和政府的声誉,败坏了卫生行业和医务人员的形象,是造成医药管理棍乱、医患关系紧张、医疗纠纷增多的一个重要原因,已经引起了社会的重大关注。如不及时治理,商业贿赂所导致的腐败和激化的社会矛盾将不仅将成为卫生事业健康发展的瓶颈,更将给整个中国宏观经济带来严重内伤,影响社会稳定。医疗系统内部,近几年也开始关注这种现象,提出了很多内部制约的规章制度。国家法律对商业贿赂的规定日益细化及完整,在法律规制以及概念界定方面出了较多的成果,顺应时势,相关的侦查部门也应该完善对于商业贿赂的侦查与治理,本文就是侧重于从侦查的角度,分析医疗领域商业贿赂犯罪案件的特点,根据特点合理选择案件的侦查突破口,适用相应的侦查措施与手段,由此来建立一个有效的长期的犯罪防控机制。文章分为三个部分,共三万五千字。第一部分,对医疗领域商业贿赂犯罪的相关内容进行概述。包括对商业贿赂、商业贿赂犯罪、医疗领域商业贿赂犯罪概念的界定;当前医药购销领域的商业贿赂犯罪的现状、特征以及成因的分析。商业贿赂是指经营者在商业活动中为销售或者购买商品、提供或者接受服务,采用给与对方单位或者个人财物或者其他利益的不正当交易行为。商业贿赂从本质上讲属于贿赂范畴,是贿赂的一种类型。商业贿赂犯罪则是指发生在商业活动领域中的所有为了谋取商业利益而破坏正常市场竞争秩序的贿赂犯罪行为。医疗领域的商业贿赂犯罪是指发生在医疗药品、设备、耗材的商业交易过程中,经营者为了经济目的而给予医疗机构及其负责人以钱财,后者利用自己的职权为前者谋取不正当利益而索取或收受钱财,情节严重的行为。这种犯罪不同于一般的商业贿赂犯罪而有其自身的特点。其形成的原因是多方面的:“以药养医”的医药体制、医患双方的信息不对称、法律法规不健全、监督机制不完善、管理机制不完善、医药购销和医疗服务标准模糊等。在一系列原因的复杂作用下,医疗领域商业贿赂犯罪的呈现出严峻的态势,一系列案件的浮出水面,诸多高官的落网表明,这种腐败的不良行为已经渗透到了市场经济的体制中,后果非常严重。第二部分,探讨医疗领域商业贿赂犯罪的侦查对策。在这一部分首先着重论述的是医疗领域犯罪案件的特点。从犯罪时间来看,它一般是发生在商业领域或商业交易过程中;犯罪空间来看,此类案件一般没有固定的地点和场所;犯罪主体多元化关联化,串案窝案明显增多;犯罪对象多样性,既包括生活中一般意义的财物,还包括提供其他类型的利益,如出国、旅游等;犯罪手段多样性,比如试用、回扣、虚开发票等;犯罪后果严重性,对于医疗事业这种救死扶伤、具有较高职业道德情操的行业而言,民众赋予更高的情感诉求,不允许夹杂任何腐败成分,一旦发生腐败,就是影响到社会民生的大事。其次,根据案件特点,对案件查处困难进行剖析,寻求案件的突破口。此类案件的查处具有相当的难度,一方面是由于现行法律法规还不够完善,具体的诸如案件立案、管辖等制度都比较混乱。另一方面,此类案件涉及到医疗专业领域,这对侦查人员的素质有较高的要求。并且此类案件的犯罪人一般都有较高的素质,反侦查的能力相当强,这些都构成案件侦破的重重阻碍。由此,我们要在明确此类案件的立案、管辖的基础上,对案件进行审查,致力于寻求案件的突破口,紧紧抓住账目及相关的材料,抓住药品流通等关键的环节进行审查等等。最后,在前面所分析问题的基础上,提出打击医药购销领域商业贿赂犯罪的侦查对策,在基本侦查手段的基础上力求创新。一般的侦查方法,如讯问、获取证人证言、走访、开座谈会、搜查居所等,依然应该作为基础的措施予以实施。除此,一些特殊的侦查方法也可以选择性的采用,如技术侦查、司法会计检查、诱惑侦查等。第三部分,探求从伦理、立法、体制等角度构建防范医疗领域商业贿赂的长效机制,同时防控对策的建立与原因、特点相对应。具体有:制定和完善有关法律法规;改革医疗管理体制,构建有效可行的医疗规制体制;研究和设计科学合理的医疗规制机制,比如:建立和完善价格调控机制、建立和完善医疗质量评估机制、建立和完善信息披露机制、建立和完善医院和医技人员的准入机制等。
[Abstract]:Commercial bribe in Chinese medical profession has become a rule of practice and business operation. Commercial bribery is a typical unfair competition. It means that the operator bribes the other unit or individual by means of property or other means to sell or purchase goods. The essence is to get the trading opportunity by means of bribery and damage other business. The legal rights and interests of the people have disrupted the social and economic order. The commercial bribery in the field of medicine and marketing has aggravated the difficulty of seeing a doctor, seeing the expensive problem, damaged the reputation of the party and the government, corrupted the image of the health industry and the medical staff, and has caused an important reason for the disorder of medical management sticks, the tension between doctors and patients, and the increase of medical disputes, which has already caused the society. If not in time, the corruption and intensifying social contradictions caused by commercial bribery will not only become the bottleneck of health development, but also bring serious internal injury to the whole Chinese macro-economy and affect social stability. In the medical system, many internal constraints have been put forward in recent years, and many internal constraints have been put forward. The rules and regulations of the state law are becoming more and more detailed and complete on commercial bribery, and more achievements have been made in legal regulation and concept definition. The relevant investigative departments should also improve the investigation and management of commercial bribery. This article is to focus on the analysis of commercial bribery crime in the medical field from the angle of investigation. The characteristics of the case, according to the characteristics of the rational selection of the breach of the case investigation, the application of the corresponding investigation measures and means, thus to establish an effective long-term crime prevention and control mechanism.
The article is divided into three parts, a total of thirty-five thousand words. In the first part, the related contents of commercial bribery in the medical field are summarized. It includes the definition of commercial bribery, commercial bribery crime, the concept of commercial bribery crime in the medical field, the current situation, characteristics and causes of commercial bribery in the field of medical purchase and marketing. Bribery is a kind of improper transaction that provides or accepts services for the sale or purchase of goods in business activities and uses the other units or personal property or other interests. Commercial bribery is a type of bribery in nature and is a type of bribery. Business bribery crime refers to the field of commercial activity. A bribery crime in which the normal market competition order is destroyed in order to gain commercial interests. Commercial bribery in the medical field refers to the business transactions that occur in medical drugs, equipment, and consumables, and the operators give money to the medical institutions and their responsible persons for economic purposes, and the latter uses their own powers as the former. This crime is different from the general commercial bribery crime and has its own characteristics. The cause of this crime is many aspects: the medical system of "taking medicine for medicine", the asymmetric information of the doctors and patients, the unsound laws and regulations, the imperfect supervision mechanism, the management mechanism, Under the complex action of a series of reasons, the crime of commercial bribery in the medical field shows a severe situation, and a series of cases have come to the surface. The net of many high officials shows that this kind of corrupt behavior has penetrated into the system of market economy, and the consequences are very serious.
The second part discusses the Investigative Countermeasures of the crime of commercial bribery in the medical field. In this part, the characteristics of the criminal cases in the medical field are mainly discussed in this part. From the time of crime, it usually occurs in the commercial or commercial transactions; in the criminal space, there is no fixed place and place for such cases; the subject of the crime is generally not. The diversity of the criminal object diversity, including the property of the general meaning of life, including the provision of other types of interests, such as going abroad, tourism, such as the variety of criminal means, such as the trial, the rebate, the invoice and so on, and the seriousness of the consequences of the crime, has a higher occupation for the medical cause. In the moral sentiment industry, the people endow higher emotional appeals and do not allow any corrupted components. Once corruption occurs, it is an important event that affects the people's livelihood. Secondly, according to the characteristics of the case, it analyzes the difficulties in investigating and investigating the cases, and seeks the breach of the case. The current laws and regulations are not perfect, and the specific systems such as case filing and jurisdiction are all confused. On the other hand, such cases involve medical professional fields, which have high requirements for the quality of investigators. And the offenders in such cases generally have high quality, and the ability to counter investigation is quite strong, which all constitute cases. Therefore, we should make a clear case on the basis of the case, on the basis of the jurisdiction, to examine the case, to seek the breach of the case, to seize the accounts and related materials, to seize the key links of drug circulation and so on. Finally, on the basis of the previous analysis, we put forward the attack of medicine. The Investigative Countermeasures of commercial bribery crime in the field of purchase and marketing strive for innovation on the basis of basic investigative means. General investigation methods, such as interrogation, witness testimony, visit, open forum, search place, etc., should still be carried out as basic measures. In addition, some special investigation methods can be adopted selectively, such as technical detection. Inspection, judicial accounting inspection, seduction investigation, etc.
The third part is to explore the long-term mechanism of preventing commercial bribery in the medical field from the perspectives of ethics, legislation and system. At the same time, the establishment and reasons of prevention and control measures should be established and the characteristics are corresponding. The specific features are: making and perfecting relevant laws and regulations, reforming the medical management system, constructing an effective and feasible medical regulation system, and studying and designing scientific and rational medical treatment. The mechanism of treatment regulation, such as: establishing and perfecting the mechanism of price regulation, establishing and perfecting the medical quality evaluation mechanism, establishing and perfecting the information disclosure mechanism, establishing and perfecting the admission mechanism of hospitals and medical technicians.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D917.6

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