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Discussion on the Related Problems of Unlicensed Practice
Wang jian dong lawyer
Recently, I participated in the discussion did not get the "medical institutions practicing permit" unauthorized practice of administrative penalties of the discussion and found that in the process of banning undocumented practicing law due to legal provisions are not clear, grassroots law enforcement officers in the practice of law enforcement can not According to the situation, there is a large risk of law enforcement, it will be related issues to be discussed.
First, the legal basis for undocumented practice:
Article 39 of the Law of the People's Republic of China on Licensing Practitioners stipulates that "without the approval of medical institutions to practice medical practitioners or non-medical practitioners, by the people's governments above the county level health administrative departments to be banned, confiscated their illegal income and their drugs, Equipment, and may be punishable by the fine of 10,000 yuan under the circumstances ";" Regulations on the Administration of Medical Institutions, "Article 44 provides that" did not obtain "medical institutions practicing permit" unauthorized practice by the county people's government health administration department ordered to stop practicing activities, confiscation of illegal gains and medicines, equipment, and impose a fine. " The Ministry of Health's "Reply to the Relevant Issues in the Implementation of the Regulations on the Administration of Medical Institutions" (Wei Fa Jian Fa  No. 15) states that "the provisions of Article 44 of the Regulations on the Administration of Medical Institutions" Practice activities "should be regarded as" banned ". Therefore, there is a clear legal requirement for the elimination of undocumented medical practitioners.
Second, undocumented practice to prevent the existence of the relevant issues
Although there is a clear legal requirement for the elimination of undocumented practitioners, the existing laws do not provide for the specific means of enforcement and enforcement procedures for unlicensed practicing medicine, resulting in many problems in law enforcement practice:
1, "banned" the legal attributes of the problem:
The Ministry of Health has pointed out in the "Reply to the relevant issues concerning the implementation of the Regulations on the Administration of Medical Institutions" (Wei Fa Jian Fa  No. 15), which consulted the Standing Committee of the Standing Committee of the National People's Congress, Of the views of the health administrative departments of unapproved medical institutions or non-medical practitioners to practice illegal acts of banning, is an administrative coercive measures, not administrative penalties. However, the "Administrative Enforcement Law of the People's Republic of China", which came into effect on January 1, 2012, did not explicitly "banned" the administrative coercive measures. I think that it is clear that "banning" is not a kind of administrative punishment, "The role and purpose of the study should be an administrative coercive measures, the application of" the People's Republic of China Administrative Enforcement Law "relevant provisions.
2, "banned" the relevant procedures:
The State Health Commission on June 5, 2016 issued a "no code of practice to investigate and deal with the code" (Guo Wei supervision issued 〔2016〕 25), but unfortunately the normative document to develop a clear legal basis is still "practice The Law on the Administration of Medical Institutions and the Regulations on the Administration of Medical Institutions did not make the Administrative Enforcement Law of the People's Republic of China as a clear basis, indicating that there was no unified understanding of the legal attributes of "banning" at the national level, so the only direct It is not clear that the provisions of the procedures for investigating the work of conducting undocumented practice are not clearly stipulated in the relevant procedures for investigating and investigating the relevant procedures, especially the evidence of the measures taken to prove the goods and equipment, The reason for this issue is that the competent authorities have a unified understanding of the legal nature of the "banning". I think that "banning" as an administrative coercive measure should be carried out in accordance with the provisions of Article 18 of the Administrative Enforcement Law of the People's Republic of China :( a) administrative organ shall report and approved prior to implementation; (b) by two or more administrative law enforcement personnel (3) to produce the identity documents; (4) to inform the parties to the scene; (5) to inform the parties on the grounds of administrative coercive measures, basis and the rights and remedies available to the parties according to law; (6) to listen to the statements and defense of the parties (8) the transcript of the scene by the parties and administrative law enforcement officers signed or sealed, the parties refused, in the transcripts to be marked; (9) the parties do not attend the scene, inviting witnesses to the scene, by the witness and the administrative law enforcement personnel signature or seal on the scene; other procedural requirements (10) of laws and regulations.
3, "ban" measures to deal with during the course of practicing medicine without a license in the proof of medicines, equipment and other related items in question:
Article 11 of the Code of Practice for the Examination and Approval of Factories shall be subject to the approval of the person in charge of the administrative organ and the relevant items and places of the drug, equipment and tools that are difficult to obtain in the future. Article 15 of the provisions of the first registration of the preservation of the items, the evidence to be the first registration of the preservation of the decision of the organ should take the first registration and preservation measures within 7 days from the date of the following decision to make the "evidence of the first registration and preservation of the decision" (2) after verification of the case, in the implementation of administrative penalties, according to the case to investigate and deal with the need for evidence; (c) to make confiscation of administrative penalties; (c) to be confiscated by the parties concerned; To be confiscated according to law. The decision on the handling of the evidence in the preceding paragraph (b) of the preceding paragraph may be written as "because the conduct of the party concerned is suspected of violating the laws or regulations, Year × month × day for the case, the first registration of the preservation of goods as evidence.
I think that "no code of practice to investigate and punish the work of" to prove that the practice of drugs, equipment, tools and other related items in the handling of the provisions of the existence of inadequate. Because the evidence to register the first deposit is the "Administrative Punishment Law" Article 37 of the administrative organs in the investigation and collection of evidence to take measures, the law clearly stipulates that within seven days should be made in a timely manner to deal with the decision, and the general administrative penalty cases need 60 days Or a three-month period, law enforcement agencies tend to make a decision on the items to be registered in advance for a short period of seven days, and there will be a risk of defects in administrative law enforcement procedures. On the other hand, the " The results of the treatment, "as evidence" of the decision, in the need for confiscation when there is "confiscated" the subject matter as evidence of the consequences, and "Administrative Punishment Law" Article 37 of the provisions of the contrary. The reasons for the emergence of this situation, I think the Department of Health and Health in charge of the "Administrative Compulsory Law" provisions of the administrative coercive measures arising from the lack of awareness, "Administrative Enforcement Act," Article IV provides: "administrative coercion and Shall be in accordance with the statutory authority, scope, conditions and procedures. "Article 10 provides that:" administrative coercive measures shall be set by law ... ... other normative documents other than laws and regulations shall not set administrative enforcement measures. " Article 7 provides that: "Administrative coercive measures shall be entrusted by administrative organs as prescribed by laws and regulations within the scope of statutory functions and powers." Administrative enforcement measures shall not be entrusted. "Because of the laws and regulations of the Medical Practitioners Act and the Regulations on the Administration of Medical Institutions, To give the administrative power of the administrative enforcement of the right to enforce the provisions of the specific types of administrative coercive measures, so in the process of banning undocumented practice does not apply the provisions of the administrative coercive measures, I think "administrative enforcement law" enacted late, Practicing physician law ", medical institution regulations" enacted earlier, in understanding and To understand the legal principles of the legislation, as well as the intention of the internal logic of the law from the time of "Administrative Enforcement Law." Article 27 of the Administrative Enforcement Law states: "The administrative organ shall, after taking the seizure and seizure measures, promptly investigate the facts and make a decision in the time limit prescribed in Article 25 of this Law. Shall be confiscated and seized, and shall make a decision to lift the seizure and seizure. "And the administrative coercive measures refer to the administrative organs in the course of administrative administration , In order to stop the illegal acts, to prevent the destruction of evidence, to avoid harm, control the risk of expansion, etc., according to the law of the citizens of the free implementation of temporary restrictions, or citizens, legal persons or other organizations to implement temporary control of property. Therefore, the administrative coercive measures that are seized and seized before the administrative punishment shall be taken as necessary. If the administrative department has the power to collect the power, the administrative department shall have the right to take the administrative coercive measures for seizure and seizure before making the confiscation decision, this is the exercise of the right to confiscate the question of the proper meaning, does not require special authorization laws and regulations. Since the "Practicing Physician Law" and "Regulations on the Administration of Medical Institutions" have been banned by the health administrative departments of the people's governments at or above the county level and confiscated their illegal gains and their drugs and equipment, they may impose fines according to the circumstances. Health administrative departments in the investigation and prosecution of medical practice, to prove that the undocumented practice of drugs, equipment and other related items can be confiscated, of course, before making administrative penalties for the need to confiscate the drugs involved, the equipment to seize, seized, this Fully in line with the "Administrative Enforcement Law" legislative intent, we can not because of "Practitioners Act", "Medical Management Regulations" does not require health administrative departments in the investigation of undocumented practice can take seizure, seizure of administrative coercive measures, and simple To understand the health administrative departments did not take seizure, seizure of administrative coercive measures.
4, the "banned" process found in the "three no" equipment can be confiscated?
In the process of banning often find some equipment, equipment used to engage in medical practice, but these instruments, equipment is often "three no products", and some are not marked in Chinese or can not be identified as medical equipment. In the practice of law enforcement, some people think that the "Medical Practitioners Act", "Medical Management Regulations," the confiscation of the equipment must be in line with the provisions of the medical equipment, or can not be confiscated, I think this view is wrong. "Medical Device Supervision and Management Regulations" is the standard of medical equipment development, production, management, use activities and supervision and management activities, is the identification of legitimate medical equipment, if the banned undocumented practice found in the process does not meet the "medical equipment Supervision and management regulations, "for the undocumented medical equipment can not be confiscated, will be on the indulgence of illegal acts, light to the weight of legitimate medical equipment for undocumented practice can be confiscated, illegal medical equipment to the people Security threats are greater, but should be confiscated according to law, so in law enforcement practice, found for unauthorized use of medical equipment, "three no product" health administrative law enforcement departments have the right to be confiscated.
In summary, I believe that the prohibition of non-certified practitioners should be in accordance with the administrative enforcement of the procedures, in the process of banning the discovery of evidence to engage in undocumented practice of drugs, equipment and other related items before making administrative penalties can take seizure, Measures, as long as there is evidence to prove that the relevant equipment for undocumented practice, even if the "three no product" health administrative departments can be confiscated according to law.