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Doctors use the right prescription to receive kickbacks Legal Thinking

Abstract: In recent years, medical corruption, to hold down prices due to the growing phenomenon of corruption and one as a medical doctor by prescribing medicines to patients receiving kickbacks, although there are a lot of the behavior being investigated, in the application of criminal law has triggered a great controversy, dispute the contents of the article cut from the judiciary, and then on the recommendations.
Key words: public hospitals, doctors, prescription kickbacks, bribery
Recent years, to hold down prices, medical prices abnormally high growing problem, and this corresponds to a medical buying and selling , a general concern and disgust the people of social evils. For the purchase and sale of medical areas of commercial bribery, nature of the act in both academia and practice has generated controversy, especially in May 19, 2004 triggered a fierce response from industry has yet to form a more unified point of view. This article on the legal nature of the act should be how to identify their views and suggestions put forward in order for us to provide some reference for the judicial practice.
A prescription qualitative rebate disputes
Clinicians in public hospitals because the dominant position, the nature of prescription rights issues such as no clear provisions in the Criminal Code, judicial interpretation has not been involved in this, resulting in judicial practice to deal with such cases vary widely around, and the Judiciary this is quite controversial, which can be attributed to the mainstream view of three categories: companies, corporate officers taking bribes, said, bribes that the innocent said.
Companies, business people taking bribes, said that while the public health sector is the state-owned institutions, but not all of the unit staff are national staff, as those without any administrative duties of the occupational physicians, as they not engaged in official business, so do not meet the criminal law provisions on the national staff can not become the subject of taking bribes; because of the current public health sector is not the full sense of public service nature, with a certain degree of profit-making nature of the its operation is similar to enterprise, therefore, the right prescription for the use of their acts of receiving kickbacks, should companies be convicted and punished the crime of Bribery.
Said that the prescribing behavior of accepting bribes from the surface is a technical point of view,[link widoczny dla zalogowanych], but in essence, the administration of the drug, the performance of the national public power, so that the doctors in the state-owned units are engaged in official business. Because hospitals and other state institutions, are both derived from the division of governmental authority, even if some units there is no financial provision,[link widoczny dla zalogowanych], but the initial investment is still the state capital, from the historical continuity consideration, the current work of these units should be regarded as official acts. As long as the perpetrator is established by the state, financial allocation by the State or part of the national funding institutions to rely on in the medical, nursing and prevention work, the prescribing behavior of kickbacks should be handled by taking bribes. The right prescription to be considered The representative of the new songs waiting for academics.
Innocence that the main point of the general public hospitals, clinicians are not state workers, non-prescription for the implementation of its Scholars criminal law of that a public service activities, and do not have management authority, natural can not believe that the behavior of doctors prescribing the exercise of the official activities of state power. because doctors do not belong to criminal law sense of national staff, so the doctor prescribed the right to use the behavior of receiving kickbacks in the Criminal Code does not constitute bribery, also not a violation of the relevant criminal law, which dealt with as offenders, it is difficult to find the exact legal basis. , institutions, people's organizations engaged in organization, leadership, supervision and performance management of the economic functions of the nature of social activities, public activities, in essence, a management activity, with state power and manageability. prescribing behavior of clinicians and scope of activities not part of official duties, is the use of medication for patients with diagnosis of occupational rather than using his position to facilitate the convenience, of course, their conduct did not constitute kickbacks bribes. public hospital clinic doctors regular exercise state power are also does not meet the elements of the crime of bribery provisions of the principal. Not difficult to see, and not guilty of taking bribes, said that the differences lies in the identification of the crime that the public service, based on the transfer of ideas from. I believe that the commission should clarify the nature of a doctor's prescription, you need to consider two levels: first, the is a technical activity or the exercise of powers of management activities.
Second, the What is the Can only exist in the official activities of state organs, state enterprises, institutions, mass organizations, the collective economic organizations or social groups within the state, personal affairs, private organizations, public service does not exist. Second, the public and services are different. Official is the internal needs of the above units or disposal should be according to law or the various management of affairs, and labor refers to material production and labor service activities. ③ services from property ownership restrictions. Material production,[link widoczny dla zalogowanych], refers to the processing, manufacturing products, farmers farming, fishermen, construction workers building roads and so on. Labor service, which includes simple labor services such as hairdressing, transportation, cleaning, including asset valuation, capital verification, accounting, legal services and other complex labor services. Personnel for these jobs, because they are not engaged in official business, but in special labor personnel to provide services for others, even though the units where they may be state-owned units, even if they also have identity of national cadres, but they engaged in these professional services, as these activities do not have any public authority itself, the nature and, therefore, no abuse of power, the possibility of trading power for money.
Distinction between official and services staff to determine the national significance such crimes. We believe that the fundamental difference is that services do not have the nature of state power, functions and manageability. Personnel engaged in labor management sense not a country manager, but by managers. Cashier of state-owned units, conductor, salesperson, salesman, etc, although handling, management of state property, but they are engaged in professional activities, is the manager of the organization, leadership, supervision, management, carried out under the so , such personnel can not be classified as criminal sense of the scope of national staff.
National staff engaged in official activities of a state official, has the following characteristics: First,[link widoczny dla zalogowanych], manageability. Relevant units of the national public service activities in accordance with laws, regulations, rules and regulations shall be liable for and implementation of its affairs, the organization, leadership, supervision, inspection, handling, etc. with the management of activities. Second, the terms of the. State service activities generally are in a state organs and units engaged in transaction management functions within the department, the staff has certain duties, in accordance with laws, rules and regulations of the relevant provisions. Duty is the unity of authority and responsibility. Any level of civil servants irrespective of position, power, size, since it is to manage the affairs, must and must give it a certain authority, including the related human, financial, and material, the right to decide what variety of services, decision-making and oversight powers , investigation, disposition, for the right and so on. For state officials, its all power directly and indirectly from the country, the performance of the direct use of public power. Power without a corresponding position, it is impossible to achieve the management of the community, and can not guarantee an orderly state of society forward. Therefore, the performance of official functions as the national authority of management activities.
The above analysis, we know that national staff are engaged in public service should be a mandate of management activities, the nature of a public authority. Well, doctors in public hospitals are the acts of prescribing exercise his powers, and then with management as well? I will be the source of the power of clinical prescription, be exercised and the exercise of the consequences to be analyzed to determine the nature of their behavior.

three prescription weight analysis
1, the source of the right to prescribe. We believe that the power of doctors prescribing is based on its status as a doctor has, the doctor should be part of the right to practice. Medical personnel the right to practice business activities of a qualified doctor practicing medicine to obtain the right to participate in assessment by medical staff to obtain access, through the application, be employed and achieve, therefore, to obtain the right to practice is based on occupation, rather than a department or unit have given some duties. Not only has the prescription of doctors in public hospitals the right to private clinics, private hospitals and other medical institutions of all medical practitioners are legally entitled to prescribing medicines.
2, exercise of the right prescription. Doctors prescribe exercise of the right process is simple: go to the hospital for medical treatment of patients, doctors prescribe the right remedy the condition of patients, prescription, patients at the sale of drugs by prescription to buy medicine. Is it right to think that drugs play a decisive role in the sale of a prescription is it? The problem is not so simple. In our country a considerable number of public hospitals, into the drug is generally determined by the Committee to study pharmacy. A hospital's pharmacy committee usually led by the hospital, pharmacy leadership, clinical department officers. Pharmaceutical Affairs Council for decision, the general must first be purchased Officer of the department which drugs,[link widoczny dla zalogowanych], by the collective study, led by the hospital and then decide. It can be seen, clinicians generally not directly involved in the procurement of drugs, the only time a prescription drug option, even if a doctor in order to get the rebate choose a repeat prescription drugs, it does not determine the drug to achieve the desired level of sales, because doctors can not determine the number of patient visits, the same, prescribing doctors can not decide where to purchase of medicines for patients, because of current drug sales approach taken by the market model, in addition to the sale of drugs within the hospital Department, as well as hospital pharmacies are the major options available to patients.
Based on the above analysis, we can see that doctors have the right prescription is obtained based on their career, their prescribing behavior is based on the career (not job) and technical activities, and not the procurement of drugs in public hospitals and direct impact on sales, so the doctor is not prescribing public life, but during the service, belong to the scope of private power, clinicians Crimes in the Criminal Code does not belong to the sense of national staff. Therefore, clinicians in public hospitals to receive kickbacks by prescription shall not constitute acts of bribery.
Four companies to receive kickbacks act does not constitute, corporate officers accepting bribes.
Clinicians in public hospitals, whether the conduct constitutes a company to receive kickbacks, corporate bribery offense? The author also concluded in the negative. According to China In China, though the public hospitals to do an independent accounting, but still belongs to the health administration department under the unit, the initial investment is still the state capital, found on the legal nature, because the nature of social public affairs, it can not do to manage their own business, it should be recognized as an institution, with the company, the different nature of the enterprise, the public health sector can not be included in the company, within the scope of the enterprise. Article 163 of the Penal Code expressly provides companies and enterprises the main body of bribery should be
Sum, because the act is not criminal law restrictions, according to law does not the principle of the crime shall be determined as the innocent, it should be by the appropriate department administrative law to be adjusted, not by the criminal law to be specification. Such as China's not solicit, accept patients of illegal property or seek other illegitimate interests.
Fifth, several legislative proposals.
Although existing criminal law provisions from the point of view, clinicians in public hospitals in the use of prescription kickbacks conduct did not constitute bribery, but it should be noted that the act has a greater social harm, but also aroused the masses general antipathy, to a certain extent, so that China is currently in the social transition, the department's division, the rise of the third sector, public services, the expansion of the main body, leading to non-public nature of corruption in recent years, intensified, and the existing object Bribery Legislation and the only company in the state personnel and , business people, is too limited to cover many emerging bribery great harm to society, in addition to the above, there is similar to its world wide controversy. The total delay of the law, but also requires us to carefully examine, research, based on the times and improve the law in order to achieve the ultimate justice demands. To this end, I propose the following legislative proposals:
1, general provisions in the Penal Code, the concept of national staff to be modified. Specific approach is a reference for the Chinese government in December 10, 2003 signed up to the first global legal instrument against corruption, in accordance with domestic law of States Parties to the definition and the relevant laws in the field of application, the performance of public functions, including for a public agency or public enterprise to perform public functions or providing public services of any other staff. If the Chinese criminal law also introduced a similar to further our laws with international standards, intensify anti-corruption efforts, which for the strengthening of China and the world-wide anti-corruption cooperation has great significance.
2, set up in the criminal law office in the business of accepting bribes or taking bribes, taking bribes and in existing companies and enterprises to set up between the officers taking bribes in a regulated public service object for the crime of bribery, which will be such as doctors, teachers and other staff providing public services to be received bribes in the Crime and reasonable.
I pleased to see that has been delivered to the NPC Standing Committee of the Criminal Law Amendment (VI) in the expansion draft the main body of commercial bribery, the draft Penal Code section 163 (the original company, corporate officers taking bribes) of the main from for others to reap benefits over a relatively large amount shall be punished according to commercial bribery; company, enterprise or other unit staff members in economic activities, the use of his position, in violation of state regulations, accept various forms of rebates, the procedure fee, owned by individuals, in accordance with the preceding paragraph shall be punished. Here called
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① ② Suxian Long: ③ Wang Zuofu editor: