Lawyer

Chapter 822 The prescription is a good prescription, but...

Lawyers are the backbone of a law firm, and they are the front-line professionals. However, there are still many tasks surrounding lawyers in the law firm that need people to do. The simplest things are personnel, administration, and finance. An integral part of the service is for lawyers.

In order to improve the efficiency of lawyers, in addition to the internal office system and electronic seal, there is also the contact information of public security organs commonly used by litigation lawyers in their work. Wanhua United Law Firm has a special person responsible for updating the contact number every month, which is convenient. Lawyers do business.

……

The case of Dr. Chu's production and sale of counterfeit medicines finally came to court.Early in the morning, Fang Yi and Yun Qiao went to the county court for a hearing.

Because of the simplicity of the case, the defendant Chu Guangxian acknowledged all the facts of the case, so the investigation procedure of the previous case went very quickly, so I won't repeat it here.The focus of this case is on the nature of the case.

"The facts of this case have been investigated clearly, the court investigation is over, and the court debate is now beginning. The court debate mainly revolves around the disputed facts that have not been certified by the court and how to apply the law based on the facts.

Let the prosecutor speak first. " said the presiding judge.

"The presiding judge and the judges: the public prosecutor believes that the defendant Chu Guangxian prepared a poisonous drug containing 'aconitine' without the approval of the national health administrative department. Therefore, it constitutes the crime of producing and selling counterfeit medicines. The specific reasons are as follows:
According to the second paragraph of Article [-] of the "Opinions on Rectifying and Regulating the Drug Market" jointly issued by the State Council's Restructuring Office, the State 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 only It can distribute commonly used and emergency medicines approved by provincial health and drug supervision departments.

There are also relevant provisions in the "State Council's Approval of the Ministry of Health's Request for Instructions on Allowing Individuals to Practice Medicine" that prescriptions for clinics are formulated by local designated medical institutions.

According to Article 20 of the "Implementation Regulations of the Drug Administration Law of the People's Republic of China" No. [-], medical institutions such as outpatient departments and clinics set up by individuals shall not be equipped with drugs other than commonly used drugs and emergency drugs.The scope and varieties of commonly used medicines and emergency medicines 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 it is located together with the drug supervision and administration department of the people's government at the same level.

Article 60 of No. [-] of the Regulation stipulates that if medical institutions such as outpatient departments and clinics 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 90 of the "Drug Administration Law" No.[-], the production (including preparation, the same below), sales, and use of counterfeit and inferior drugs are prohibited.It is prohibited to produce and import drugs without obtaining drug approval certificates; it is prohibited to use raw materials, 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 according to law. Article 115 stipulates that those who produce or sell drugs without obtaining a drug production license, drug business license, or medical institution preparation license shall be ordered to close down, the illegally produced and sold drugs and illegal income shall be confiscated, and the illegally produced and sold drugs shall be fined ( Including sold and unsold drugs, the same below) fines ranging from 10 times to 10 times the value of the goods; if the value of the goods is less than [-] yuan, the calculation shall be based on [-] yuan.

According to the above-mentioned provisions, the defendant in this case, in the process of operating the clinic, provided the victim with capsules that had not been inspected, approved or approved by any drug regulatory agency, and the prescription was not given by a designated medical agency, let alone meet the national standards. , the drug prepared by the defendant was a counterfeit drug.

In addition, in this case, Chu Guangxian not only wrote prescriptions to patients during the diagnosis and treatment process, but also sold self-made medicines to patients, which is somewhat different from the prescribing behavior of ordinary doctors.

If it is just to prescribe prescriptions and let patients go to pharmacies or hospitals (clinics) to buy medicines by themselves, and the production, purchase and sales of these medicines have no direct relationship with the doctor, then what the doctor is doing is just an act of performing medical care duties. He is only responsible for his prescriptions, even if the fake drugs sold to patients have nothing to do with him.

In this case, the defendant sold the self-prepared medicines directly to the patients, which was a self-produced and self-marketed behavior, and a relationship between producers, sellers and consumers had been formed between him and the patients who purchased the medicines.Therefore, this behavior of Chu Guangxian belongs to the behavior of production and sales.

To sum up, the defendant knew that the medicine he prepared might endanger the health of the patient, but adopted a laissez-faire attitude, which caused serious consequences of poisoning and death of the patient. His behavior constituted the crime of producing and selling counterfeit medicine.

According to 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 parties had their own reasons, so Fang Yi failed to persuade the prosecutor.

"Next, the defendant will defend himself." The presiding judge looked at Chu Guangxian who was sitting in the dock.

"I do not agree with the accusation, I did not produce or sell fake medicines, I just prepared medicines to alleviate the pain of patients, and the medicines I prepared did not enter the market, and were only aimed at patients with rheumatism.

I have practiced medicine for many years, and it is the job of a doctor to cure diseases and save lives. I have prescriptions for curing diseases in my hand. Do I want to watch patients in pain and ignore them?
I admit that I neglected the patient's other underlying diseases during the preparation of the medicine, was inaccurate about the dosage, and used the medicine improperly, but this prescription can indeed cure the disease, it is not a fake medicine, and it has indeed cured the patient...

The medicine I prescribed killed someone. I have nothing to say about this, but the prescription is true. It is all left by my ancestors. I ask the judge to give me a lighter punishment according to law. "Chu Guangxian argued.

He always thought that the prescription was a good one, but he was not sure about the dosage.

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

"The presiding judge and the judges: the defender believes that the defendant Chu Guangxian is a doctor with professional qualifications, and his behavior of making medicines based on folk prescriptions and folk prescriptions for diagnosis and treatment, causing the death of patients does not constitute the crime of producing or selling counterfeit medicines. It constitutes the crime of medical malpractice. The specific reasons are as follows:
[-]. The behavior of doctors making medicines based on folk prescriptions and folk prescriptions for diagnosis and treatment should not constitute the crime of producing and selling counterfeit medicines.

Although the purpose of the defendant selling drugs to patients is to make money through diagnosis and treatment activities.However, the drug is only used for specific patients, and has not been officially sold in the market, nor has it formed a certain scale of production and sales.

The behavior of the defendant is different from the "production and sales" behavior in the crime of producing and selling counterfeit drugs stipulated in Article 141 of the "Criminal Law".

Both production and sales in the crime of producing and selling counterfeit medicines should belong to market behavior, that is, this kind of behavior should be an economic activity based on market circulation, aiming at realizing profits, and establishing a certain relationship between supply and demand.

Because only economic behavior within a certain market economic order can violate the basic rules of normal market economic activities and constitute a violation of the market economic order. After Fang Yi finished speaking, he paused.

(End of this chapter)