I am not the prototype of Hercules, it is based on real materials
Recently, a domestic magic drama is being screened at Moments, and friends who have watched it have expressed their tears in laughter. The story is about a leukemia patient, Lu Yi (Wang Chuanjun, played), who is getting weaker by the day and can only live on a drug called "Glenin". But he can't afford it, to be precise, he can't afford it in China. The market price is 40,000 bottles. And the medicine produced in India with the same effect is only 2,000. Cheng Yong (Xu Zheng, played), the boss who sells Indian divine oil, found a business opportunity in it, purchased it from India, and sold it to domestic leukemia patients, who were named "God of Medicine" by the patient. Are legal people familiar with this plot? That's right, this movie is based on a real story. The protagonist of the prototype, Lu Yong, is a patient with chronic myeloid leukemia. Under the pressure of high drug prices, he embarked on the road of purchasing foreign generic drugs overseas. He also purchased this drug for many patients through online credit cards. He is known as the "first person to purchase anti-cancer drugs". It is also because of purchasing generic drugs that he was arrested on suspicion of "obstructing credit card management" and "selling counterfeit drugs". On January 27, 2015, the Yuanjiang City Procuratorate asked the court to withdraw the indictment. The prosecutor explained in the interpretation statement that he decided not to prosecute: "If Lu Moumou's behavior is determined to constitute a crime, it will deviate from the values of criminal justice."
I am not a medicine god true events background stories review
At the age of 34, Lu Yong was diagnosed with chronic myelogenous leukemia and took the cancer drug Gleevec for two years, which cost 564,000. Later, he switched to Indian generic drugs, which cost only 1/20 of the price. He recommended the drugs to other patients and helped buy them on behalf of others. As a result, he was arrested on "suspicion of interfering with credit card management and selling counterfeit drugs."
There was widespread sympathy for Mr. Lu's plight, with 1,002 cancer patients signing a joint letter in support of him, saying he had "enabled more patients to get a path to self-help and gradually walk out of the abyss of life disaster."
When "Dallas Buyer's Club" was released, the protagonist battled cancer, human prejudice, and the U.S. Food and Drug Administration.
After being detained in the detention center for 117 days, on January 27, 2015, the Yuanjiang People's Procuratorate withdrew the prosecution. Two days later, Lu Yong regained his freedom.
For this experience, Lu Yong is unwilling to mention it now, he said, "People always want to live." The above is the beginning and end of Lu Yong's incident, because of the release of "I am not the God of Medicine", it is estimated that many people will pay attention to this focus character again.
Yuan Jian's public punishment does not sue [2015] No. 1 (with deletion)
The person not charged, Lu Moumou, male, born on April 6, 1968
Defenders Zhang **, Zhang **, lawyers of Beijing Law Firm.
reviewed
The criminal facts identified in the review and prosecution opinion of Yuanjiang Public Security Bureau:
In August 2013, Lu Moumou purchased three sets of bank cards with other people's identity information at a price of 500 yuan each from Guo **, the owner of "honest **" Taobao, in the name of "samchina ******”" on the Internet. After Lu Moumou purchased these three cards, he used an Agricultural Bank of China card with the account name Xia Moumou to absorb funds for the sale of counterfeit drugs.
In 2012, Indian Jainsa **** opened two accounts of Jainsa **** and Jainm **** in Agricultural Bank of China, Wuxi City, Jiangsu Province to absorb the funds involved in the trafficking of Indian drugs. Since January 2013, Jainsa **** and Lu Moumou have partnered to sell "VEENATlOO", "IMATINIB400", "IMATINIB100" and other drugs produced by Indian "cyno pharmaceuticalsltd" company in China. Lu Moumou successively used the Agricultural Bank of China accounts of Luo Moumou and Yang Moumou, patients in Pu'er City, Yunnan Province, to collect drug sales funds for him. Until August 2013, in order to evade the crackdown and turn around the funds for selling Indian drugs, Lu Moumou purchased the Agricultural Bank of China card with Xia Moumou's ID card from Guo Moumou's "Chengxin Moumou" online store on the Internet. It was used to collect funds for the sale of drugs in China by Jainsa ****, an Indian "cyno pharmaceuticals1td" company. The Yiyang Food and Drug Administration confirmed that the drugs sold by Lu Moumou for India's "cyno" company in China were all sold without the license of imported drugs in China.
Since 2013, Lu Moumou has sold these drugs for more than 3 million yuan, and during this period, he has remitted the money to Zhang Moumou's account in Yiwu City, Zhejiang Province, at the behest of Jainsa ***.
The court found out
After the court's legal review, it was found that:
In 2002, Lu Moumou was diagnosed with chronic myeloid leukemia and needed to take anti-cancer drugs for a long time. The regular anti-cancer drug "Gleevec" series for symptomatic treatment of leukemia in our country is imported from Switzerland, and each box costs 23,500 yuan. Lu Yong used to take this drug. In order to communicate with patients with the same disease, pass on information about seeking medical treatment to each other, and reduce drug prices by increasing the number of people who buy the same drug, Lu Yong started to establish a QQ group of patients with leukemia in April 2004.
In September 2004, Lu Yong purchased similar drugs produced in India from Japan through others. The price of each box was about 4,000 yuan, and the effect was the same as that of "Gleevec" imported from Switzerland. After that, Lu Yong used the contact information provided in the drug manual to directly contact the Indian anti-cancer drug distributor, Sino Company, and began to buy anti-cancer drugs directly from Sino Company in India. After taking the same drug in India for a period of time, Lu Yong felt that the efficacy of similar drugs in India was good and the price was cheap, so he recommended it to his patients through online QQ groups and other means. Patients in the online QQ group also joined the ranks of buying the drug from Sino Company in India. Lu Moumou and his patients first paid for the drug to Sino Company in India through international remittances such as Western Union. In the process, Lu Moumou also used his expertise in English to translate emails and other materials with Sino Company in India for leukemia and other cancer patients for free. With the spread of the disease among patients, the number of domestic leukemia patients who purchased the anti-cancer drug from Sino Company in India gradually increased, and the price of the drug gradually decreased, until each box was more than 200 yuan.
Due to the aforementioned payment method, it is necessary to first exchange RMB into US dollars and use English, which is cumbersome and difficult to operate. Patients seeking medicine proposed to Sino Company in India to open an account in China to facilitate payment. In March 2013, Sino Company in India negotiated with Lu Moumou, who was the first to buy medicine in the company, and Lu Moumou set up a bank account in China to receive the patient's drug purchase payment, and regularly transferred the drug purchase money to the account name of Zhang Moumou in China designated by Sino Company in India. After Lu Moumou counted the specific number of drugs purchased by each patient and informed Sino Company in India, Sino Company in India directly mailed the drugs to the patient. Sino Company in India promised to provide free drugs to patients who provided account numbers. Lu Moumou posted the idea of the Indian Sainuo company in the QQ group of patients. Luo Moumou, a leukemia patient from Yunnan, contacted Lu Moumou and was willing to provide the bank account numbers of himself and his wife Yang Moumou in exchange for free drugs. Lu Moumou used the account provided by the management Luo Moumou through the online banking U shield. After the patient paid the payment for the drug to the account, he transferred the purchase money to Zhang Moumou's account and notified the Indian Sainuo company to send the drug to the patient, eliminating the need for the patient to buy the drug. Some of the previous tedious labor such as exchange and translation.
After using Luo Moumou and Yang Moumou accounts to pay for drug purchases for a period of time, Luo Moumou heard that the transaction volume of the bank card was too large, which may lead to suspicion of money laundering, and he was unwilling to provide it for use. In August 2013, Lu Moumou purchased 3 bank debit cards opened with other people's identity information from Guo Moumou at a price of 500 yuan each through Taobao. In preparation for use, he found that 2 of them could not be used because the password could not be activated, and only 1 debit card with the account name Xia Moumou was used. Lu Moumou also used the online banking U shield to manage the account and transferred the patient's drug purchases to the Zhang Moumou account designated by Sino Company in India.
According to the evidence on file, a total of 21 cancer patients with leukemia and other cancers who were verified to be true purchased more than 10 anti-cancer drugs worth about 120,000 yuan from Sino Company in India through the three bank accounts of Luo Moumou, Yang Moumou and Xia Moumou provided and managed by Lu Moumou. The help provided by Lu Moumou for the patients is all free. For the more than 10 anti-cancer drugs purchased, there are three drugs: "VEENAT100", "IMATINIB400" and "IMATINIB100". The relevant identification issued by the Yiyang Food and Drug Administration is a drug imported without the approval of our country.
The court believes that
This court believes that Lu Moumou's act of purchasing and assisting others in purchasing anti-cancer drugs imported without approval violated the relevant provisions of the Drug Administration Law of the People's Republic of China, but Lu Moumou's act was not a sales act, did not comply with the provisions of Article 141 of the Criminal Law of the People's Republic of China, and did not constitute the crime of selling counterfeit drugs. Lu Moumou purchased 3 debit cards opened with other people's identity information from Guo Moumou through Taobao, and used the debit card with the household name Xia Moumou, which violated financial management regulations, but its purpose and use were entirely leukemia patients who paid for self-serving drugs and purchased anti-cancer drugs, and only used 1. The circumstances were significantly minor and the harm was not significant. According to the provisions of Article 13 of the Criminal Law of the People's Republic of China, it was not considered a crime. In accordance with the provisions of Article 15 (1) and Article 173 (1) of the Criminal Procedure Law of the People's Republic of China, it was decided not to prosecute Lu Moumou.
The frozen and detained funds of Yuanjiang Public Security Bureau in handling this case should be handled according to law.
If Lu Moumou refuses to accept this decision, he may appeal to this court within seven days after receiving this decision.
Yuanjiang People's Procuratorate
February 26, 2015
Interpretation of the decision not to prosecute the case of Lu Moumou's obstruction of credit card management and sale of counterfeit drugs
According to the provisions of Article 15 (1) and Article 173 (1) of the Criminal Procedure Law of the People's Republic of China, our court has decided not to prosecute Lu Moumou, who is suspected of selling counterfeit drugs and interfering with the management of credit cards. The reasons are as follows:
First, Lu Moumou's behavior does not constitute the crime of selling counterfeit drugs
1. Lu Moumou's behavior is not a selling behavior. The so-called sale is to sell (goods). In economics, sales is the seller's business activity in the process of commodity exchange mediated by money, and it is the behavior of selling goods. The seller seeks the value of the goods, while the buyer seeks the use value of the goods. A comprehensive and systematic analysis of all the facts of the case shows that Lu Yong's behavior is a buyer's behavior, and it is a constituent behavior in the overall behavior of leukemia patients to buy drugs. He seeks the use value of anti-cancer drugs from Sino Company in India.
First of all, Lu Moumou and leukemia patients are buyers of anti-cancer drugs from Sino Company in India. First, long before buying drugs from Sino Company in India, Lu Yong, a leukemia patient, established a QQ group with these leukemia patients seeking medicine, and exchanged their conditions with online QQ and patient associations and other carriers to pass on medical information. Patient Pan Moumou's testimony said that establishing a QQ group can also expand the group of patients and organize patients to negotiate with drug manufacturers to reduce drug prices. Second, Lu Moumou introduced it to his patients after he took the drugs from Sino Company in India. The price of the anti-cancer drugs purchased from Sino Company in India started at 4,000 yuan per box, but later dropped to 200 yuan per box. Third, Lu Moumou provided free help for patients to buy drugs. Lu Moumou not only helped the patient buy medicine and pay for it, but also used his expertise in English to translate the patient's drug instructions and emails. During this process, Lu Moumou neither increased the price nor charged any fees such as agency fees or intermediary fees. Fourth, the drug buyers Lu Moumou helped were all leukemia patients, and there were no personnel engaged in sales or intermediaries for profit.
Secondly, the act of providing an account number by Lu Moumou does not constitute an accomplice in the sale of counterfeit drugs with Sino Company of India. According to the provisions of Article 48 (3) (2) of the Drug Administration Law of our country, drugs that must be approved in accordance with this law but are produced or imported without approval, or that must be inspected in accordance with this law and sold without inspection, shall be punished as counterfeit drugs. That is, counterfeit drugs made by law. Sino Company of India sells anti-cancer drugs imported without approval in our country, which is the act of selling counterfeit drugs. According to the provisions of Article 8 (1) of the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases against Drug Safety (Legal Interpretation [2014] No. 14) issued by the two highs, those who provide an account number knowing that others produce and sell counterfeit drugs shall be punished as a joint crime. In this case, the fact that Lu Moumou provided Luo Moumou, Yang Moumou, and Xia Moumou with three account numbers is essentially a buyer's behavior, and cannot be regarded as a joint sales behavior. First, from the background of the account generation, it originally originated from the patient's request to facilitate the purchase of drugs. Before Lu Moumou provided the account number, the patient paid for the drug purchased by Sino Company in India by international remittance such as Western Union. It was necessary to exchange RMB into US dollars and use English. The procedure was cumbersome and difficult to operate. The patient who asked for the drug asked Sino Company in India to open an account in China to facilitate payment. Sino Company in India negotiated with Lu Moumou, who was the first to buy drugs from the company, and proposed to provide free drugs for those who were willing to provide the account number. Second, from the source of the account number, the first two accounts used in the three accounts were provided by the patient. After Lu Moumou passed the news to the patient group, Luo Moumou, a patient from Yunnan, was willing to provide the account number established by himself and his wife Yang Moumou to Lu Yong. When Luo Moumou was worried that he might be suspected of money laundering due to the increase in the amount of transaction funds, he purchased a debit card with the account name Xia Moumou through Taobao. The third is from the function of the account number provided, which is to collect the drug purchase money of the patient, so as to transfer the money to the account number of Zhang Moumou designated by Sino Company in India. It is a transitional account for collection and transfer, and undertakes the function of facilitating the patient to pay for the drug purchase. There is no need for the patient to buy the drug to exchange money and translate. Fourth, from the actual use of the account, the patient purchased drugs to these 3 accounts and informed Lu Moumou. Lu Moumou used the online banking U shield to manage these 3 accounts, and transferred the patient's payment to Zhang Moumou's account designated by Sino Company in India. Then Lu Moumou informed Sino Company in India, and Sino Company in India issued drugs according to the payment bill. It can be seen that setting up these 3 accounts is Lu Moumou's provision of drug purchase services for patients, which is a component of the overall drug purchase behavior of the drug seeking group of leukemia patients. According to the provisions of our country's criminal law, joint crime refers to two or more joint intentional crime, specific to this case, if it constitutes an intentional crime, it should be Lu Moumou and India Sino Company jointly commit the crime of selling counterfeit drugs, more specifically, it should be Lu Moumou based on helping India Sino Company to sell counterfeit drugs and provide an account number for India Sino Company, and in this case, the act of purchasing anti-cancer drugs from India Sino Company is a collective act of leukemia patients seeking medicine, Lu Moumou represents the buyer instead of the seller, India Sino Company to set up an account and Lu Moumou's negotiation is between the seller and the buyer, Lu Moumou as the buyer's representative to provide services to the buyer from beginning to end. When the sale is completed, the buyer's behavior naturally provides help to the seller in the objective result, which is an inevitable transaction form for the buyer and the seller to make a deal, but it must not be assumed that the buyer becomes a joint seller. Just as buying goods in the market, the result of buying goods provides help for the seller to realize the sale, if the buyer is regarded as a joint seller, it will fundamentally confuse the relationship between buying and selling. Similarly, if Lu Moumou's behavior is regarded as a joint sales behavior of Sino Company in India, it will also confuse the relationship between buying and selling, and fundamentally deviate from the logical premise of judging the case, which will inevitably violate the truth.
2. Lu Moumou's behavior did not violate the right to life and health of others. The social harm of criminal behavior is manifested as the infringement of the object protected by the criminal law. Regarding the crime of selling counterfeit drugs, the Criminal Law of our country in 1997 stipulates that "the production and sale of counterfeit drugs are sufficient to seriously endanger human health"; Amendment (8) to the Criminal Law removes the requirement of "seriously endangering human health" for this crime, and its purpose is to strengthen the protection of people's livelihood to avoid embarrassment in judicial practice. This is because of the difficulty of obtaining evidence that is "seriously endangering human health" and affects the punishment of this crime. In this regard, the above-mentioned two highs "Interpretation on Several Issues in Handling Criminal Cases of Endangering Drug Safety" Article 11, Paragraph 2 stipulates: "The sale of a small amount of foreign and foreign drugs imported without approval has not caused harm to others or delayed diagnosis and treatment. If the circumstances are significantly minor and the harm is not big, it is not considered a crime." And so on, these instructions, protecting people's right to life and health is the core intention of the legislation on the crime of selling counterfeit drugs. The counterfeit drugs in this case are legal fictitious drugs that are punished as counterfeit drugs due to unauthorized importation. According to the evidence in this case, after the leukemia patients who were helped by Lu Moumou purchased and took these drugs, they did not suffer any harm to their bodies, some still had therapeutic effects, and some even gave testimony to thank Lu Moumou for helping them extend their lives. At the same time, it should also be pointed out that, as mentioned earlier, Lu Moumou's actions also violated the provisions of the National Drug Administration Law, but there is a helplessness. At present, the price of legal symptomatic treatment of leukemia drugs is expensive, which makes it unbearable for ordinary patients. Due to this, Lu Moumou carried out this case as a last resort when he and his patients could not bear the economic burden of taking legally imported drugs.
Second, Lu Moumou purchased 3 debit cards opened with other people's identity information from Guo Moumou through Taobao, and used the debit card with the account name Xia Moumou, which violated financial management regulations, but due to the significant minor harm, it is not considered a crime
According to the provisions of Article 1 (4) of the Criminal Law Amendment (5), the act of purchasing a credit card fraudulently obtained by using false identity certificates is an act of obstructing the management of credit cards. According to the interpretation of the High People's Procuratorate and the Ministry of Public Security on the provisions of the prosecution standards of this article, those who use their resident ID cards and other identity certificates to apply for a credit card against the will of others shall be identified as using false identity certificates to fraudulently obtain a credit card. According to the "Interpretation of the Provisions on Credit Cards in the Criminal Law" of the Standing Committee of the National People's Congress, debit cards belong to the scope of credit cards in the sense of criminal law. Lu Moumou's above-mentioned act of purchasing and using a debit card fraudulently obtained by using false identity certificates, but the circumstances are significantly minor and the harm is not significant. According to the provisions of Article 13 of the Criminal Law,
1. Lu Moumou purchased a debit card. Although debit cards, credit cards, and quasi-credit cards are all credit cards in the sense of criminal law, debit cards do not have overdraft functions. At the same time, only 1 of the 3 debit cards Lu Moumou purchased can be used, and objectively only 1 is used.
2. Lu Moumou's motivation, purpose and use for purchasing the debit card is to facilitate leukemia patients to purchase anti-cancer drugs. Except for paying for the purchase of anti-cancer drugs for patients, Lu Moumou did not use the debit card account for any profit-making activities, nor did he commit other acts that endangered financial order, nor did he cause any economic losses.
3. Lu Moumou's purchase and use of debit cards objectively provided free help for leukemia patients. First, the 500 yuan paid for the purchase of the debit card was borne by Lu Yong himself; second, the debit card number was used to pay for the purchase of drugs, eliminating the trouble of foreign exchange and English translation that patients and friends needed to pay for the drugs before; third, the result of Lu Moumou's use of this debit card was to increase his workload to reduce the amount of labor of patients and friends, and it was a kind of free help for disadvantaged groups suffering from leukemia.
III. If it is determined that Lu Moumou's behavior constitutes a crime, it will deviate from the values of criminal justice
1. Contrary to the values of justice for the people. Looking at the facts of the whole case, there are four basic points: first, Lu Moumou's behavior originated from his own leukemia patients and sought life-sustaining drugs; second, the groups that Lu Moumou helped to buy drugs were all leukemia patients, and there were no people engaged in sales or intermediaries to deal in drugs for profit; third, Lu Moumou's help to leukemia patients was free; fourth, in the domestic market, legal anti-cancer drugs were expensive, and Lu Moumou's behavior objectively benefited leukemia patients. The value orientation of criminal justice is manifested in two aspects: human rights protection and social protection. The protection of social order is fundamentally also the need to safeguard the common interests of the people. The Fourth Plenary Session of the 18th Central Committee of the Communist Party of China decided to emphasize that "we must adhere to the people's justice for the people," and "safeguard the people's rights and interests through fair justice." At the same time, it emphasized that "we must adhere to the construction of the rule of law for the people, rely on the people, benefit the people, and protect the people, with the protection of the people's fundamental rights and interests as the starting point and end point." Although Lu Moumou's behavior touched the state's management order of drugs and credit cards to a certain extent, the actual harm to these aspects is difficult to compare with the right to life and health of leukemia groups. If Lu Moumou's behavior that benefits leukemia patients subjectively and objectively is regarded as a crime without considering the latter, it is obviously contrary to the value of justice for the people.
2. Contrary to the humanistic care of the judiciary. In criminal justice, according to our country's criminal law and criminal procedure law, for minors under the age of 18, the elderly who have reached the age of 75, deaf and mute or blind, mental patients who have not completely lost their ability to recognize or control their own behavior, pregnant women or women who are breastfeeding, in the application of penalties or litigation rights, litigation procedures, the application of the corresponding provisions of differential treatment reflects the special protection of disadvantaged groups, which shows the humanistic care of criminal justice, and adheres to the principle of equality before the law. In this case, Lu Moumou and his friends as a leukemia group, is also a disadvantaged group, Lu Moumou's violation of the drug management law and hinder the management of credit cards occurred in the process of seeking medical treatment for himself and his patients to maintain their lives, and on the one hand, these behaviors occur in the case of actually having the ability to buy legal drugs, on the other hand, these behaviors did not bring much actual harm to the relevant parties, if this disadvantaged group self-help behavior in the minor illegal acts to criminal treatment, obviously contrary to the criminal justice should be humane care.
3. Contrary to the requirements of changing the concept of criminal justice. With the constitutional principle that the state respects and protects human rights enshrined in the revised Criminal Procedure Law, protecting human rights has become one of the basic tasks of the Criminal Procedure Law, and together with punishing crimes, it constitutes the value goal of criminal litigation. To transform the concept of criminal justice from the perspective of protecting human rights is to pay attention to the criminal rule of law, use criminal means cautiously, and standardize the operation of criminal judicial power. It is necessary to emphasize the principle of modest punishment, and truly use criminal law as a last resort and a last resort to adjust social relations. It is also necessary to strictly regulate law enforcement, adhere to equal emphasis on procedures and entities, strictly abide by legal procedures, accurately apply substantive laws, and adhere to rational, peaceful, and civilized law enforcement. The problem in this case can be dealt with through administrative methods. If the right to life and health of leukemia patients is ignored, the use of criminal law to evaluate Lu Moumou's above-mentioned behavior and the use of criminal means is not in line with the requirements of changing the concept of criminal justice.
In summary, Lu Moumou has violated the National Drug Administration Law, such as violating Article 39 (2) of the Drug Administration Law on drugs imported for personal use, and shall go through the import formalities in accordance with national regulations, etc., but Lu Moumou's behavior does not constitute the crime of selling counterfeit drugs at all because it is not a sales behavior; Lu Moumou purchased 3 debit cards opened with other people's identity information from Guo Moumou through Taobao, and used the debit card with the household name Xia Moumou, which belongs to the act of purchasing and using a credit card fraudulently obtained with false identity certificates, which violates financial management regulations, but its purpose and use are entirely to pay for leukemia patients to buy drugs due to self-administration of drugs, and only 1 is used. The circumstances are significant and minor harm is not considered a crime. From the objective facts of this case, a comprehensive investigation of this case, according to the values of justice for the people, Lu Moumou's behavior should not be treated as a crime.
Yuanjiang People's Procuratorate
February 26, 2015
Source: Fangyuan magazine WeChat official account
News source: Sina News; Editor in charge: Zhang Yiling
