非法行医案件中行政执法与刑事司法的衔接——兼评最高人民法院有关司法解释

Cohesion of Administrative Law Enforcement and Criminal Justice in Illegal Medical Practice Cases—— Concurrent Review of Related Judicial Interpretation of the Supreme Court

我国对非法行医分别在刑法和行政法中做出规定,二者概念及内涵的本质区别是行政违法与犯罪。非法行医案件中行政违法与犯罪的界限,应从主体和客观方面予以准确界分。为了非法行医案件中行政执法与刑事司法的有效衔接,应完善案件移送与接受机制,规范案件移送中的证据转化,厘清行政处罚与刑罚的关系。最高人民法院的有关司法解释量化了非法行医中违法与犯罪的界限,有利于司法实践,但仍有不足之处。

The illegal medical practice is regulated by both administrative law and criminal law, considering the aspects of concept and meaning, and is defined as administrative illegality and crime, which differ in the subject and the objective aspect. In order to cohere the administrative law enforcement and criminal justice in illegal medical practice cases effectively much needs to be done, for instance, the case transfer and acceptance mechanism should be improved, the evidence transformation should be formulated, and the relation between administrative punishment and penalty should be clarified. All in all, besides of some shortcomings, the judicial interpretation of the Supreme Court which measures the difference between administrative illegality and crime is still of benefit for judicial practice.