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单纯从刑法的规定上看非法行医罪与医疗事故罪的区别似乎十分明显。但是,一方面,由于医疗卫生活动具有极强的专业性和复杂性,实践中往往似是而非,难以区分。另一方面,由于非法行医罪和医疗事故罪都是刑法新增设的罪名,加之又是一个不十分引人注目的小罪名,法学理论界对这两罪的研究上也不充分,司法界在处理相关案件是也存在很大的差异。因此笔者试对非法行医罪,并结合医疗事故罪的比较,从犯罪的构成角度,从主体方面对这两罪的司法适用及立法完善问题,做些尝试性的探讨。
The difference between the crime of illegal medical practice and the crime of medical malpractice appears to be very clear from the point of view of the criminal law. However, on the one hand, due to the strong professionalism and complexity of medical and health activities, practice often seems plausible and difficult to distinguish. On the other hand, since the crime of illegal medical practice and medical malpractice are both new charges in the criminal law, and in addition, they are not very conspicuous offenses, the research on these two crimes is still inadequate in jurisprudence circles. The judiciary There are also big differences in handling related cases. Therefore, the author tries to compare the crime of illegal medical treatment with the crime of medical malpractice, and makes some tentative discussions on the judicial application of the two crimes and the perfection of legislation from the aspect of crime constitution.