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非法行医罪源于1997年修订的刑法,迄今已有十四年时间,但理论界、实务界在非法行医罪的犯罪构成上仍争论不休,个人在家中行医的定性就是一个争论的焦点。本文探讨刑法三百三十六条第一款立法之初衷,结合2008年的两个司法解释的规定,对个人在家中行医区分情况进行分析,并对定罪的证据要求进行梳理。
The crime of illegal medical practice originated from the criminal law revised in 1997, and it has been fourteen years since it was launched. However, the theoretic and practical circles are still arguing endlessly about the criminal constitution of illegal medical practice. The nature of individual practice at home is a point of controversy. This article explores the original intention of Article 336 of the first paragraph of the Criminal Law, combined with the provisions of the two judicial interpretations in 2008, analyzes the status of individual practice at home and combs the evidence requirements of conviction.