药品追溯码制度在全国范围内逐步落地实施,各地医保部门会陆续主动或被动接受医药机构销售“回流药”“假药”案件处理,无论协议处理还是行政处罚,无非是以医保协议或《医疗保障基金使用监督管理条例》及本地地方性法规、规章为依据。销售“回流药”“假药”还触犯《中华人民共和国药品管理法》等药监领域法律法规,违法行为竞合情况下,如何才能在遵守《中华人民共和国行政处罚法》“择一重处”原则框架下做好案件处理尤其罚款决定,本文以医保定点医药机构销售“回流药”行为的处理为辨析标靶,力求厘清其间法理逻辑,提出学术建议,推荐最优模式,供医保部门办案机关参考。

The system of drug traceability codes is gradually implemented nationwide, and medical insurance departments will deal with cases involving the sale of "backflow drugs" and "fake drugs" by medical institutions, either proactively or passively. Whether it is a protocol processing or an administrative penalty, it is based on the medical insurance agreement, The Regulations on the Supervision and Administration of the Use of Healthcare Security Funds and local laws and regulations. The sale of "backflow drugs" and "fake drugs" also violates the Drug Administration Law of the People's Republic of China and other drug supervision laws and regulations. In the case of a conflict of illegal acts, how to properly handle cases, especially penalty decisions, under the framework of the "choose the heavier punishment" principle of The Administrative Punishment Law of the People's Republic of China. This article takes the handling of the selling of "backflow drugs" by medical insurance designated medical institutions as the target of analysis, tries to clarify the legal logic, put forward academic suggestions, and recommend the optimal model for the reference of the case handling organizations of medical insurance department.