关键词: 非法行医行为, 因果关系, 结果回避可能性, 风险升高理论

Abstract: Controversy in judicial practice over the clause "causing the death of the patient" in the crime of illegal medical practice mainly involves the application of the two elements of the basic conduct and the causal relationship. Although the Supreme People's Court has issued relevant judicial interpretations timely, the determination of these two elements still requires further clarification. The criminal type of the crime of illegal medical practice suggests that the basic conduct should be strictly defined, and only medical practices that severely violate medical standards and carry inherent risks of causing harm, performed by individuals without a medical license, can be considered unlawful under criminal law. Furthermore, in determining the causal relationship, it is important to note that criminal law requires not only a direct and primary factual causal connection between the conduct and the result but also the legitimacy of attributing the result to the conduct. In assessing the legitimacy of the result attribution, the theory of avoiding risk realization in the rule of result avoidance can be applied. When engaging in a lawful activity, if the result is uncertain, the legitimacy of attributing the result should be denied, thus denying the establishment of a criminal law causal relationship.

Key words: illegal medical practice, causality, possibility of result avoidance, risk amplification theory