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非法行医罪在我国刑法理论中属于集合犯中的职业犯,要求行为人主观上必须具备以实施不特定次数的同种犯罪行为为目的,即行为人不是意图实施一次犯罪行为就结束犯罪行为,而是预计实施不特定次数的同种犯罪行为,并以此作为自己的一项职业,这要求我们在考察非法行医罪中的“行医”时,必须从客观上考察其“行医”是否具有反复性和连续性。同时非法行医罪还属于集合犯中的营业犯,通常要求行为人主观上具有“营利”目的,行为人如果主观上不以营利为目的,尽管在行医过程中有收取少量的钱财也不能认定为“营利”。最后在认定非法行医行为是否构成非法行医罪时,应当采取一种实质解释论的立场,考察该种行为是否具有严重的情节,是否达到应当受到刑罚处罚的程度。
The crime of illegal medical practice belongs to the professional prisoners in the criminal law of our country. It requires that the perpetrator must have the subjective intention to carry out the same kinds of criminal acts at an unspecified number of times. That is, the perpetrator ends the criminal act without intent to commit a criminal act, But it is expected that the same kind of criminal acts will be carried out for an unspecified number of times and use this as one of their own occupations. This requires us to examine objectively the principle of “practicing medicine” in the study of the crime of illegal medical practice, Is it repetitive and continuous? At the same time, the crime of illegal medical practice is also a business crime of a group of guilty conscience, usually requiring the perpetrator to have a “profit-making” purpose subjectively. If the perpetrator does not aim for profit on a subjective basis, even if a small amount of money is collected during practice Recognized as “profit ”. In the end, when it is determined that the unlawful medical practice constitutes the crime of illegal medical practice, a substantive interpretation theory should be adopted to examine whether such behavior has serious circumstances and whether it should be punished by penalties.