论应受行政处罚的非法行医行为

Research on illegal medical practice that should be punished by administration

在卫生行政执法实践中,对非法行医行为的认定与处罚往往重点考察主体资格和行为性质,尤其是聚焦于行为是否属于诊疗活动或医疗美容。非法行医中的“行医”并不局限于诊疗活动或医疗美容;符合单行法条款的无证主体实施的诊疗活动,也不一定构成非法行医;非法行医不一定都应受行政处罚。无证主体实施的医疗行为是否应被认定为应受行政处罚的非法行医行为,可从非法行医行为构成要件的该当性、违法性和有责性三个层次考察。

In the practice of health administrative law enforcement,the cognizance and punishment of illegal medical practice often focus on the subject qualification and behavior feature,especially whether the behavior belongs to diagnosis and treatment activities or medical cosmetology."Medical practice"in illegal medical practice is not limited to diagnosis and treatment activities or medical cosmetology.The diagnosis and treatment activities carried out by the unlicensed subject in line with the provisions of the separate law do not necessarily constitute illegal medical practice,and illegal medical practice is not necessarily be punished by administration.Whether the medical behavior carried out by the unlicensed subject should be punished by administration as illegal medical practice,can be investigated from three levels of the compliance of the illegal medical practice constitutive requirements,the illegality and the responsibility.