对制售假药行为行政处罚的适用——基于《刑法修正案(八)》的思考

The Application of the Administrative Punishments for Acts to Produce and Sell Counterfeit Drugs——A Study Based on the Criminal Law Amendment(eight)

药品是直接关系到人民群众身体健康和生命安全的特殊商品。针对制售假药行为屡禁不止,国家加大了打击力度,《刑法修正案(八)》对制售假药罪作了修改,由危险犯变为行为犯。文章通过研究认为:《刑法修正案(八)》施行后,对制售假药行为的行政处罚并没有失去法律适用的空间;行政机关既可以在刑罚处罚前进行行政处罚,也可以在刑罚处罚后给予行政处罚;对犯罪情节轻微、免予刑事处罚的,行政机关还可以独立适用行政处罚。

Drugs are special commodities, closely related to people＇s health and life safety. In recent years, despite repeated prohibitions, producing and marketing counterfeit drugs continues to exist in China. To increase the crackdown, the Criminal Law Amendment （eight） has amended the penalties for the criminal act to produce and market counterfeit drugs. In addition, previous- ly a potential damage offence, the crime is now considered a behavioral offence. The present paper argues that after the implemen- tation of the Criminal Law Amendment （eight）, there is still space left for the administrative punishments for acts to produce and sell counterfeit drugs. Administrative organs can give the offender administrative punishment before or after criminal penalties. Mild offences can be exempted from criminal punishment; yet the administrative organs can also apply independently administrative penalties.