Qingdao Traditional Chinese Medicine ＂Fake Medicine＂ case: A family of four was sen

The "fake medicine" case of Qingdao TCM, which has received the attention of the society, has recently been revoked by the second instance court and returned to retrial.

Before the incident, Hou Yuanxiang asked the local pulse.The pictures of this article are provided by the respondents

Because of its own sales of traditional Chinese medicine preparations such as "Anti -Cancer 1", Hou Yuanxiang, 67, was previously sentenced to 12 years in prison and fined 12 million yuan by the court of first instance for production and sales of fake drugs.He was sentenced together with his wife, son and daughter, as well as ex -son -in -law and nephew.

The Court of Huangdao District of Qingdao City found out that from 2011 to early 2022, Hou Yuanxiang and his daughter Hou Jing and others did not obtain drug production and sales permits.Diagnosis, sales of anti -cancer drugs "Anti -Cancer No. 1", "Anti -Cancer 2" and "Wild Heart Soup" and other traditional Chinese medicine preparations, the sales amount is more than 14.36 million yuan.

The family of Hou Yuanxiang was four, and a total of 29 million yuan was fined in the first instance.

After the first trial was sentenced, Hou Yuanxiang and others appealed.On August 30, 2023, the Qingdao Intermediate People's Court made a second trial ruling in the case, arguing that the original trial decision determined that the facts were unclear and the evidence was insufficient.

The case of production and sales of fake drugs was transferred to the public security organs for investigation by the market supervision department.The Qingdao Market Supervision and Administration Bureau has identified Chinese medicine preparations such as "Anti -Cancer 1" involved in the case as fake medicines.This determination is the key to the convention of this case, and it has also become the focus of controversy between the two parties.

The Qingdao Market Supervision Bureau has made "supplementary instructions": four products involved in the case without drug registration certificates, no medical institution preparation filing, no drug production license, no medical institution preparation permit, no national drug standards, etc.However, the defendant claimed that the treatment of cancer and cardiovascular and cerebrovascular diseases was sold to patients to treat patients; the products involved were "non -drug". According to the relevant provisions of the Drug Management Law on the "non -drug pretending to medicine", the products involved were considered as fake drugs.

Pretend to be "professor" and "director", self -made "fake drugs" such as anti -cancer

Hou Yuanxiang is a native of Yishui County, Linyi City, Shandong. He has taught in local primary schools and middle schools. He has stopped his salary and stayed in 2003. He has studied traditional medicine with many old Chinese medicine.

The Chinese Medicine Inheritance Agreement shows that Hou Yuanxiang has studied traditional medicine from old Chinese medicine.

According to Hou Yuanxiang's report, in around 1972, he knew a formula for treating tumors from the "Second Grandpa", "this recipe has 5 medicines."After studying and studying Chinese medicine, he added materials such as mushrooms, ganoderma, Cordyceps and other materials on the basis of this "recipe" to try to increase the effect."Even if this prescription is created by me." Hou Yuanxiang confessed that he started selling anti -cancer Chinese medicines that he prepared around 2012. "I have always wanted to promote the prescription for drugs to sell medicines."

During the first instance, Hou Yuanxiang's argument was different: in 2019, he only obtained the "secret recipe" from a traditional Chinese medicine teacher, and then began to cook.

Industry and commercial information shows that in 2019, Hou Yuanxiang and the other four shareholders established Shandong Weizhou Traditional Chinese Medicine Hospital Co., Ltd., and the legal representative was his former son -in -law Fu Songjie.Hou Yuanxiang's daughter Hou Jing, graduated from Shandong University of Traditional Chinese Medicine (correspondence), and established the Yizhi Kang Comprehensive Clinic in Huangdao District, Qingdao in 2018.

First trial judgment (part)

In January 2022, the Huangdao District Market Supervision and Administration Bureau of Qingdao City, joint public security, Wei Jian and other departments to investigate and deal with cases of illegally practicing medicine in a apartment in Huangdao District and making "Sanwu" drugs.

After the case was transferred to the Huangdao Branch of the Qingdao Public Security Bureau for investigation, Hou Jing was criminally detained for suspected illegal operation.

Since then, Hou Yuanxiang and his wife Xiao Peizheng, son Hou Lei, ex -son -in -law Fu Songjie, and nephew Li Shuai have been captured by the public security organs.

In August 2022, the Procuratorate of Huangdao District, Qingdao City filed a public prosecution.Prosecutors believe that the criminal responsibility of Hou Yuanxiang, Hou Jing, Hou Lei, Xiao Peizhen, and Fu Songjie should be investigated for the crime of production and sales of fake medicine; and the charges of the defendant Li Shuai were charged with fraud and hidden crimes.

The first instance criminal judgment shows that the Qingdao Huangdao District People's Court has reviewed: Since 2011, the defendants Hou Yuanxiang, Hou Jing and others have passed the case without obtaining a drug production license for drug production license.On the Internet, Hou Yuanxiang's false personal resume was invested on the Internet. In Weifang City, Zibo City, Huangdao District, Qingdao, etc.

In February 2022, Hou Yuanxiang and others sold traditional Chinese medicine such as "Anti -Cancer No. 1", "Anti -Cancer 2" and "Wild Heart Brain Soup", and were identified as fake medicines through the Qingdao Market Supervision and Administration Bureau.Relevant audit shows that from May to January 2022, Hou Yuanxiang and others sold fake drugs involved in the case of 14363355.28 yuan.

The court of first instance also found that in the process of production and sales of fake drugs involved in the case, Hou Yuanxiang said that "Professor Hou" was responsible for providing formula, diagnosis and treatment of cancer diseases, and selling drugs., And sell Hou Yuanxiang's "anticancer drugs" and "wild heart brain soup", buy Chinese herbal medicine and boil Chinese medicine medicine.

The court found that Hou Yuanxiang's son, Hou Lei, posing as the doctor "Director Li" who was responsible for getting medicine and withdrawal of the medicine in the background, used express delivery to send medicines, and connected to the sales of Yiyuan Ruikang Hospital; Hou Yuanxiang's wife Xiao Peizhen was responsible for receiving receiptThe model and help send the drug express; Hou Yuanxiang's former son -in -law Fu Songjie, in 2020, assisted Hou Jing to make traditional Chinese medicine and collect some sales funds. During this time, fake drug sales were more than 2.36 million yuan.

Six people in a family of four were sentenced, with a total fine of nearly 30 million

After the incident, Hou Jing was first taken away by the police, and Hou Yuanxiang, Hou Lei and others were pursued online.

Huangdao District Court found out that the defendant Li Shuai once provided communication tools and residences for Hou Yuanxiang and Hou Lei. During the period, he also lied that he had a relationship to elute his charges for Dasao Hou Yuanxiang and others.The cost of "finding relationships", Hou Lei and Fu Songjie gave Li Shuai 500,000 yuan and 2 million yuan in cash.

During the trial of the case, the public prosecution agency provided the written statements and transfer details of about 50 victims (patients), which proved that the patient had purchased "Anti -Cancer No. 1", "Anti -Cancer 2" from Hou Yuanxiang, Hou Jing and others."Waiting for medicines.

The defendant Hou Yuanxiang argued that the charges were not established, and the medicines produced and sold were "medicine and food", "these medicine children can drink"; daughter Hou Jing and son Hou Lei are working for themselves. "They have none of them.crime".The Huangdao District Court believes that Hou Yuanxiang's above -mentioned argument does not match the facts and will not be adopted.

The defendant Hou Jing also raised objections to the allegations and crimes, saying that he was forced to confess by torture, and all the confession was illegal evidence.The Huangdao District Court believes that the public prosecutor's organs have not read the evidence (Hou Jing confession), "Our court has not used this confession as a fixed evidence.""It doesn't match the facts."

Hou Yuanxiang's defender raised his objection to the "fake medicine" identification of the Qingdao Market Supervision Bureau, arguing that Hou Yuanxiang's behavior was determined to be "crime of obstructing drug management" more accurate and in line with the facts;Folk inheritance prescriptions cannot be identified as the crime of production and sales of fake drugs. The identification of the "fake medicine" involved in the case lacks objectivity and scientificity; Hou Lei's defender proposes that some "folk recipes" with illegal production and sales are violated the drugAdministrative violations stipulated in management cannot be identified as crimes of production and sale of fake drugs.

For the above -mentioned defense opinions, the first instance judgment shows that the Huangdao District Court will not adopt it, and generally expresses it as "inconsistent with the facts" or "not in compliance with the law", and has not carried out specific "interpretation".

The defense lawyer pointed out that the qualitative of this case may have an impact on traditional Chinese medicine in my country: folk Chinese medicine practitioners prescribed prescriptions for patients or prepared Chinese medicine for patients.Does it involve illegal crimes without approval?

Surging News Consult the legal terms and found that in recent years, my country has gradually improved the guarantee of traditional Chinese medicine according to law.

Supreme Law and Supreme Prosecutor's explanation of the application of laws to handle the criminal cases of drug safety, and the applicable laws of the application of criminal cases of drug safety are processed or sold in accordance with the folk traditional formulas.It should not be identified as a crime.

The public prosecution agency believes that Hou Yuanxiang and others produce and sell fake medicines have other particularly serious plots.According to relevant judicial interpretations, those who produce and sell fake drugs are more than 500,000 yuan, which belongs to "other particularly serious plots."

Article 141 of the Criminal Law of my country stipulates that those who produce and sell fake drugs shall be sentenced to imprisonment or detention of less than three years, and a fine; those with other serious circumstances shall be less than three years or less; there are other special serious circumstances For more than ten years in prison, life imprisonment or death sentence, and punish or confiscate property.

In February 2023, the Huangdao District Court of Qingdao made a first trial.Hou Yuanxiang's family of four and his ex -son -in -law Fu Song was sentenced to prison for production and sales of fake drugs.

Among them, Hou Yuanxiang was sentenced to 12 years and fined 12 million yuan. Hou Jing was sentenced to 11 years and fined 9 million yuan. Hou Lei was sentenced to 8 years and fined 5 million yuan.Gold 3 million yuan, Fu Songjie was sentenced to 3 years and fined 500,000 yuan.

Huangdao District Court determined that another defendant Li Shuai constituted the crime and hidden crime of fraud, and decided to perform 11 years in prison and fined 300,000 yuan.

The court of second instance revoked the original judgment, and the "fake medicine" identification was the focus of controversy

After the first trial was sentenced, the five defendants except Fu Songjie all appealed.

During the second instance stage, the market supervision department's identification of the "fake medicine" involved in the case is still the focus of controversy.

The identification letter made by the Qingdao Market Supervision and Administration Bureau (Home)

The qualitative product involved in the case is "fake medicine", which is the identification made by the Qingdao Market Supervision and Administration Bureau in February 2022 according to the application of the Huangdao Market Supervision Bureau.The identification book shows that the product "Anti -Cancer No. 1" involved in the case is liquid pharmaceutical and pills, "Anti -Cancer 2" as a medicine powder; "liver" drugs for the treatment of liver cancer, and "wild heart brain soup" that treat cardiovascular and cerebrovascular diseases.All "liquid potion+pills".

The above identification is that the case applies to the Pharmaceutical Management Law of the People's Republic of China.According to Article 98 of the Drug Management Law, the terms of "fake medicine "-" pretending to be used to impersonate medicines or impersonate such medicines with other medicines "," Anti -Cancer No. 1 "and other products involved in the case as fake drugs.

The Qingdao Market Supervision Bureau made the above -mentioned identification five months later. According to the letter of the Huangdao District Procuratorate's letter of supplementary instructions, the bureau made a "supplementary explanation" of the previous identification.

Qingdao Market Supervision and Administration Bureau "Supplementary Explanation" (Page)

In the "Supplementary Explanation", the Qingdao Market Supervision Bureau stated that according to the regulations of the Drug Management Law, production drugs should obtain a drug registered certificate and drug production license, and produced in accordance with the production process approved by the regulatory department;The preparation should obtain a preparation permit.In addition, according to Article 56 of the Traditional Chinese Medicine Law, medical institutions apply traditional craftsmanship to formulate traditional Chinese medicine preparations, and if they fail to file or not be prepared in accordance with the regulations or have not been formulated in accordance with the requirements of the filing materials, "punishment shall be punished according to the production fake medicine."

The Qingdao Market Supervision Bureau believes that the four products involved in the case of "Anti -Cancer No. 1" have no drug registration certificate, no medical institution preparation filing, no drug production license, no medical institution preparation permit, no national drugStandards, etc., they produce drugs that claim to treat cancer and cardiovascular and cerebrovascular diseases to patients to cure diseases; products involved are "non -drug".Fake medicine.

The above -mentioned identification letter and supplementary explanation of the Qingdao Market Supervision Bureau became the key evidence of the first review of the case as "production and sales of fake medicines".

After Hou Yuanxiang and others appealed, Li Aijun, the defense lawyer of the second instance, submitted written opinions to the court, arguing that the "fake medicine" of the product involved in the case was fixed.

Li Aijun believes that the discussion of "self -conflict" in the Qingdao Market Supervision Bureau in the recognition of the supplementary description, which not only believes that the four products involved are "non -drug", but also believe that the product complies with Article 2 of the Drug Management Law.The definition of medicines "," Since it is a non -drug, how can it meet the definition of the medicine? "

The Qingdao Market Supervision Bureau has determined that the production of the products involved in the case has not been approved by the regulatory department and has not been filed. It belongs to "non -drug".In this regard, Li Aijun believes that after the amendment to the Criminal Law (11), the "unprecedented medicine" of the production and sales should not be "engraved with the sword" as a fake medicine, but the clause of "crimes of obstructing drug management" should be applied toEssence

According to my country's criminal law, the crime of obstructing drug management is lighter than the crime of producing and selling fake drugs.

In the "fake medicine" identification materials, the Qingdao Market Supervision Bureau also quoted the regulations of the Chinese Medicine Law: If the traditional craftsmanship is not filed for the preparation of traditional Chinese medicine preparations, it is punished according to the production fake medicine.In this regard, Li Aijun said that the implementation time of the Chinese Medicine Law was in 2017. The State Drug Administration issued an announcement on the management of traditional Chinese medicine preparations for the formulation of traditional craftsmanship, which was February 2018.As a result, Li Aijun believes that according to the principle of "law failure and backward", Hou Yuanxiang and Hou Jing's behavior before February 2018 did not constitute the crime of production and sales of counterfeit drugs.

Li Aijun also pointed out that there is no evidence to prove that the product involved in the case has caused the consequences of healthy health. Hou Yuanxiang and others did not infringe on the legal benefits protected by production and selling fake drugs.

In the written opinion, Li Aijun also questioned the audit report involved in the case.

The Criminal Ruling (Part)

After Hou Yuanxiang, Hou Jing and others appealed, the Qingdao Intermediate People's Court formed a collegial panel to hear the case.According to Li Aijun, in early September 2023, the appellant successively received a criminal ruling.

The second instance ruling shows: "The court believes that the original judgment determines that the facts are unclear and the evidence is insufficient." The Qingdao Intermediate People's Court made a ruling to revoke the first -instance criminal judgment made by the Huangdao District Court, and sent it back to the court to re -trial.Essence