困境与出路:妨害药品管理罪“足以”要素

Dilemma and Choice: The “Sufficient” Element of the Crime of Obstructing Drug Administration

《刑法修正案(十一)》增设的妨害药品管理罪,实践中存在以非法经营罪代替本罪的现象,压缩了本罪的适用空间。对“足以严重危害人体健康”的理解不当是造成这一现象的重要原因。这一要件有区分行政违法与刑事不法的作用,不应删除。本罪不是具体危险犯,而是准抽象危险犯,证明的是行为存在“足以严重危害人体健康”,而非结果属性的危险。

The crime of obstructing drug administration added by the Criminal Law Amendment (11) has replaced this crime with the crime of illegal business operation in practice, which has reduced the application space of this crime. Improper understanding of “sufficient to seriously endanger human health” is an important reason for this phenomenon. This element has the effect of distinguishing between administrative and criminal wrongfulness and should not be deleted. This crime is not a concrete dangerous offender, but a quasi-abstract dangerous offender, which proves that the act is “sufficient to seriously endanger human health”, rather than the consequence attribute.