论非法行医罪的主体界定标准及适用(上)

Definition standard of the crime of illegal medical practice and its application

非法行医罪的犯罪主体应当界定为"未取得执业(助理)医师资格的人"。不具有执业(助理)医师资格的实习医生(见习医生)在具有医师执业证书的带教医师指导下开展的医疗活动,视作带教医师合法医疗行为的组成部分,不构成非法行医罪;未经带教医师同意,擅自开展的医疗行为,情节严重的,可以成立非法行医罪。乡村医生虽不具有执业(助理)医师资格证,但其乡村医师执业证书因具有执业(助理)医师资格证的正面确认功能,可以作为界定标准。凡是具有乡村医生执业证书的乡村医生,就不能成为非法行医罪的犯罪主体。

The subject of the crime of illegal medical practice should be defined as the person who has not obtained the qualification of the practicing or assistant practitioner physician. Practitioners who do not have a practicing qualification should practice under the guidance of a pediatrician with a medical practitioner＇s certificate. They are considered to be an integral part of the legal medical practice of the practitioner and can not constitute an offense of illegal medical practice. Without the consent of the pediatrician, unauthorized medical practice can constitute an offense of illegal medical practice if the circumstances are serious. Although a rural doctor who does not have a practicing physician or assistant physician certificate, his rural physician certificate can be used as a defined standard because of a positive confirmation function of a practicing physician or assistant physician certificate. Those who have a rural doctor practicing certificate of rural doctors, can not constitute a crime of illegal medical practice.