非法行医罪因果关系的司法认定——基于双层因果关系判断模式的展开

Judicial determination of causality of illegal medical practice crime——Development of judgment mode based on double causality

非法行医罪向来是我国危害医疗卫生秩序犯罪中的重点罪名。经过20多年的发展,司法实务中对于非法行医罪的行为主体、入罪的危害结果基本形成共识,但在非法行医行为与危害结果的因果关系认定上,基本只依据医疗鉴定机构给出的鉴定意见判断。医学鉴定意见虽能帮助法官判断非法行医行为与危害结果之间是否存在事实因果关系,却无法规范审查结果的客观可归责性。非法行医罪因果关系的司法认定,应当采用从归因到归责的双层因果关系判断模式。在归因层面以条件说等因果关系学说为基础,疫学因果关系理论为补充判断行为与结果之间是否存在事实因果关系。以此为基础,根据客观归责理论的三项规则,通过分别审查医疗行为是否创设法所不容许的医疗危险、医疗行为所创设的医疗危险是否实现以及结果是否在非法行医罪构成要件射程之内,判断危害结果的客观可归责性。非法行医行为与危害结果之间在归因层面具有事实因果关系,在归责层面具有客观可归责性时,才能肯定具备非法行医罪因果关系。

The crime of illegal medical practice has always been a key crime in the crime of endangering medical and health order in China.After more than 20 years of development,judicial practice has basically reached a consensus on the subject of illegal medical practice and the harmful results of the crime.However,in the identification of the causal relationship between illegal medical practice and harmful results,the judgment is basically based on the expert opinion given by the medical appraisal institution.Although medical expert opinion can help judge whether there is a factual causal relationship between illegal medical practice and harmful results,it can not regulate the objective imputation of review results.The judicial determination of causality of illegal medical practice crime should adopt the double-layer causality judgment mode from attribution to imputation.At the attribution level,it is based on causality theories such as conditional theory,supplemented by epidemic causality theory,to judge whether there is a factual causality between behavior and result.On this basis,according to the three rules of the objective imputation theory,the objective imputation of the dangerous result can be judged by examining whether the medical action creates the medical danger which is not allowed by the law,whether the medical danger created by the medical action is realized and whether the result is within the range of the constitutive elements of the crime of illegal medical practice.There is a causal relationship between illegal medical practice and harmful results in the attribution level.Only when there is objective imputation in the imputation level,the causal relationship of illegal medical practice can be confirmed.