人口老龄化背景下保健品欺诈的刑法规制

Criminal Law Regulation of Health Products Fraud in the Context of Aging Population

在人口老龄化形势日趋严峻的背景之下,针对老年人的保健品欺诈行为越来越多。对于这一社会问题,当前的法律更多是从行政责任或者民事责任的角度来加以约束,而这种约束的形式较为单一,且缺乏有效性。基于当前法律规制的困境,并结合保健品欺诈的常见类型,应从刑法角度以诈骗罪、生产及销售假药罪、生产及销售伪劣产品罪对该行为进行规制。在诈骗行为与其他犯罪行为发生竞合的场合,应以想象竞合犯来处理。此外,行刑衔接问题是当前刑法规制的前提性障碍,可以通过建立专案专办机制及严格把握罪与非罪之间的界限来加以解决。

Under the background of an increasingly aging situation, there are more and more fraudulent practices for health products for the elderly. For this social problem, the current law is more constrained from the perspective of administrative liability or civil liability, and this form of restraint is relatively simple and lacks effectiveness. Based on the predicament of current legal regulation and combined with the common types of health product fraud,the crime of swindling, the crime of producing and selling fake drugs and the crime of producing and selling counterfeit products should be regulated from the perspective of criminal law. On the occasion of concurrence between fraud and other criminal acts, they should be treated as imaginative joiner of offense. In addition, the connection between administrative law and criminal law is the primary obstacle to the current criminal law regulation, this issue can be solved by establishing special case handling mechanism and strictly grasping the boundary between crime and non-crime.