《刑法修正案(十一)》后时代药品犯罪圈的重置

Resetting the Scope of Drug Crime in the Period After the Implementation of Amendment(Ⅺ) to the Criminal Law

《刑法修正案(十一)》修改假、劣药犯罪,增设妨害药品管理罪,可谓是对药品犯罪的体系重建。对药品犯罪的探究,不仅要立足假、劣药犯罪和妨害药品管理罪,还要考虑对破坏药品管理秩序行为可能适用的其他罪名,以防止“出了此罪,又入彼罪”。在《刑法修正案(十一)》施行后,药品犯罪的适用遇到一系列争议问题,犯罪圈的界限尚需进一步明晰。药品犯罪的保护法益是公众生命健康,但表征法益是药品管理秩序。以此为基础,“假药”“劣药”的认定应当适用《药品管理法》的相关规定,并以卖家对产品主要功效的标示或者宣传为标准界分药品与食品。妨害药品管理罪是具体危险犯,但应当区分行为类型来判断具体危险程度,以便利实务操作。

The Criminal Law Amendment(XI) amends the crimes of fake and inferior medicine and establishes the crime of obstructing medicine management, which can be described as a systematic reconstruction of medicine crimes. The exploration of medicine crimes should not only be based on the crimes of fake and inferior medicine and the crime of obstructing medicine management, but also consider other crimes that may be applicable to acts that undermine the order of medicine management, so as to prevent the problem of “exculpating this crime while incriminating another crime”. Since the implementation of the Criminal Law Amendment(XI), the application of medicine crimes has encountered a series of controversial issues, and the boundaries of the crime scope need to be further clarified. The protection of legal interests of medicine crimes is the public’s life and health, while the superficial legal benefit is the order of medicine management. On this basis, the identification of “fake medicine” and “inferior medicine” should be subject to the relevant provisions of the Medicine Administration Law, medicine and food should be divided according to the labeling or publicity of the main efficacy of the product by the seller. The crime of obstructing medicine management is a specific potential damage ofense, but the specific degree of danger shall be judged by distinguishing the type of conduct to facilitate judicial practice.