危害药品安全犯罪圈实质划定的向度

The Dimension of Substantive Delimitation of Criminal Circle Against Drug Safety

我国刑事立法采取假药﹑ 劣药二元区分,抽象危险犯与实害犯搭配,行为方式和主观罪过单一的药品安全保护模式,在犯罪圈划定的宏观层面上略显随性,实践中常频繁借用兜底性罪名填缺补漏.加之前置性法规范《药品管理法》存在诸多缺陷,致使危害药品安全犯罪圈受到法益保护不力与人权保障不利的双重质疑,既有以罚代刑的弊病,又有过罪化现象.危害药品安全犯罪圈应当通过立法和司法双向衡平的维度来实质划定.立法上,提高法益保护的周延性﹑ 增强法律条文的可适用性以及标准的可执行性,仍然是刑法调整危害药品安全犯罪发展的应然态势:司法上,依据一般生活经验法则,对有无足以危害民众身体健康﹑ 生命安全的行为事实进行独立的﹑ 实质性的判断,是消解法定犯与抽象危险犯叠加的过罪化风险的关键.

The legislation of drug-related crimes in China adopt s the mode of dualistic distinction between counterfeit drugs and inferior drugs, combination of abstract dangerous crimes and harmful offenders, single mode of behavior and subjective offence, which appears careless and casual at the macro level of delimitation of criminal circles, frequently filling in gaps and omissions by borrowing baseline charges, and also because of the defects of the pre-existing laws and regulations of the Drug Administration Law, the logic of judicial form evolves. Under the deduction, the circle of crimes endangering drug safety is doubted by the weak protection of legal interests and the unfavorable protection of human rights, which has both the disadvantages of substituting punishment for punishment and the phenomenon of criminalization. The final determination of the crime circle is the result of the interaction between legislation and justice. Legislatively ,improving the extensiveness of legal interest protection, enhancing the applicability of legal provisions and the enforceability of standards are still the necessary trend for the criminal law to adjust the development of crimes endangering drug safety .Judicially, according to the general rule of life experience, making an independent and substantive judgment on whether there are acts that endanger people's health and life safety is to resolve the definite offender and extract.The key to the risk of criminalization, such as the dangerous crime superimposed.