Criminal law evaluation of hindering epidemic prevention and control


Xian-quan liu Shanghai law punishment law research association, professor, PhD supervisor on February 6, 2020, “the two projects” jointly issued “on the punishment according to law breach will be coronavirus pneumonia epidemic prevention and control of the illegal crime opinions” (hereinafter referred to as “opinions”), for a breach of the new champions league epidemic prevention and control crime criminal law has made a comprehensive and detailed provisions shall be applicable.In the current epidemic prevention and control of the normalized special period, the frequent practice of breach of epidemic prevention and control act, to clarify the “opinion” and the related judicial interpretation and, through the relationships between the related charges of constitutive requirements and the applicable scope, the precision to the detriment of the epidemic prevention and control act nature that should have its special significance.As early as On May 13, 2003, the Two High Schools issued the Interpretation on Several Issues concerning the Specific Application of Law in Criminal Cases concerning The Prevention of Obstruction and The Control of Epidemic Outbreaks of Infectious Diseases (hereinafter referred to as the Interpretation).However, there seems to be a certain contradiction and conflict between the Opinions and interpretation on the qualitative nature of criminal law that hinders epidemic prevention and control.On the one hand, regarding the application of criminal law for refusing to implement epidemic prevention and control measures, the Opinions and interpretations respectively identify the crime of hindering the prevention and control of infectious diseases and the crime of negligently endangering public security by dangerous means.It should be noted that the main reason for this difference is that the scope of infectious diseases in the crime of hindering the prevention and control of infectious diseases in the Criminal Law is limited to Class A infectious diseases, while at the time of the interpretation, the class A infectious diseases specified in the Law on the Prevention and Control of Infectious Diseases only include plague and cholera, but not COVID-19.For this reason, the Interpretation can only punish acts impeding the prevention and control of epidemic diseases that negligently cause the spread of non-A class infectious diseases as the crime of endangering public security by dangerous means.Subsequently, on the basis of summing up the experience in the prevention and control of SARS in 2003, and based on the actual needs of the prevention and control of daily outbreaks of infectious diseases, the Law on the Prevention and Control of Infectious Diseases, revised in 2004, clearly stipulates that prevention and control measures should be taken for some non-A class infectious diseases.Article 49 of the Provisions of The Supreme People’s Procuratorate and the Ministry of Public Security on standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (I) issued on June 25, 2008 absorbed the above amendments to the Law on the Prevention and Treatment of Infectious Diseases, and clearly included the behaviors causing the spread of “infectious diseases under the management of Class A” into the regulation scope of the crime of preventing and treating infectious diseases.On January 20, 2020, the National Health Commission issued notice No. 1, specifying that “COVID-19 will be included in the Class B infectious diseases stipulated in the Law on the Prevention and Control of Infectious Diseases, and measures for the prevention and control of Class A infectious diseases will be taken.”Thus, acts that cause the spread of COVID-19 virus can be criminalized as impeding the prevention and treatment of infectious diseases.On this basis, in the current COVID-19 prevention and control work, it is obvious that priority should be given to the provisions of the Opinions, and criminal acts that refuse to implement epidemic prevention measures should be punished as crimes hindering the prevention and control of infectious diseases.On the other hand, it is stipulated in the Opinions and Interpretations that the act of intentionally spreading infectious pathogens to endanger public security should be identified as the crime of endangering public security by dangerous means.The difference is that as for the applicable scope of the crime of endangering public security by dangerous means, the Interpretation does not define the specific circumstances in which the crime is applied, while the Opinions make a clear and exclusive limit.According to the opinions, only two specific cases can be punished as endangering public security in a dangerous way, while other acts that cause the spread of infectious diseases by refusing to implement epidemic prevention measures or are in serious danger of spreading infectious diseases should be punished as obstructing the prevention and control of infectious diseases.It can be seen that the original intention of the Opinions is to strictly limit the scope of application of the crime through enumeration.It should be noted that to provide a strong legal guarantee for epidemic prevention and control, the Guidelines emphasize the timely and strict punishment of all kinds of illegal and criminal acts impeding epidemic prevention and control in accordance with the law.However, we should not think that the Opinions only focus on strict and severe.Compared with the “Interpretation”, the “Opinions” actually emphasizes the accurate application of appropriate severity under the provisions of the criminal law within the framework of the legal provisions, and its content is still the concrete embodiment of the criminal policy of balancing leniency with severity.The opinions are not so much an emotional interpretation of law as an emphasis on controlling emotions in judicial application.In the judicial concept, we must understand and grasp the relationship between “severe punishment” and “law” to prevent the “one size fits all” of justice.The crime of endangering public security by dangerous means is a bottom-covering charge.Acts that endanger public security, such as explosion and arson, shall be directly identified as specific charges, rather than punished as crimes of endangering public security by dangerous means;For other acts endangering public security without specific charges but with “homogeneity” in criminal methods such as explosion and arson, the crime of endangering public security by dangerous methods can be applied.When identifying such crimes, we must strictly grasp the specific elements of crimes endangering public security.The interpretation cannot be blindly expanded, nor can it be arbitrarily reduced to avoid confusion between crime and non-crime, the boundary between this crime and other crimes, resulting in inaccurate conviction and improper sentencing.In the author’s opinion, we should be cautious about the application of the crime of endangering public security by dangerous means to the obstruction of epidemic prevention and control.In the subjective aspect, unless the perpetrator wants or indulges the consequences of the spread of infectious diseases for the motive of revenge on the society, venting dissatisfaction, etc., it should not be easily identified as the crime of endangering public security by dangerous methods.Nowadays, in most cases in practice, actors who obstruct epidemic prevention and control are often not “aware” of the consequences resulting in the spread of infectious diseases.Even in some cases, the actor is “aware” of the occurrence of the harmful results, but he often holds the psychological attitude of “credulity can avoid”. At this time, the actor rejects and denies the consequences of the spread of infectious diseases, rather than hope and laissez-faire.Just think, in practice, the perpetrator who refuses to carry out quarantine measures even though he knows he is suspected of COVID-19 does not reject or deny the infection of his relatives and friends.Therefore, the author believes that it is difficult to indulge the spread of infectious diseases, except for the direct intention to jeopardize the prevention and control of epidemic diseases under extreme circumstances, which may constitute the crime of endangering public security by dangerous means.In fact, “opinions” also proved the author’s views.As mentioned above, the Opinions objectively clarify that only two special acts hindering epidemic prevention and control can be identified as crimes of endangering public security, that is, the scope of application of this crime is strictly limited in terms of whether they have been diagnosed, whether they have been isolated for treatment due to suspicion, and whether they have entered public areas.Moreover, while listing the objective behavior of the crime, the Opinions also emphasize the subjective constituent requirements of “intentionally spreading the novel Coronavirus pneumonia pathogen”.Therefore, according to the exclusive provisions of the Opinions, the application of the crime of endangering public security by dangerous means during epidemic prevention and control should be strictly handled.For the two specific circumstances that do not belong to the Opinions, or the actor does not have the intention of disseminating subjectively, neither of them can be punished as the crime of endangering public security by dangerous means.First of all, the crime of impeding the prevention and control of infectious diseases is a negligent crime.From the provisions of the statutory penalty, the maximum statutory penalty of this crime is only 7 years imprisonment, which is basically consistent with the provisions of the criminal law of other related negligent crimes, such as the crime of endangering public security by negligent dangerous methods.If the perpetrator intentionally endangers the order of the prevention and control of infectious diseases and causes the outbreak or exacerbation of the epidemic, it is obviously impossible to apply such a light statutory sentence, but should constitute the crime of endangering public security by dangerous means, the maximum statutory penalty being death.Therefore, if the crime of preventing infectious diseases is considered as intentional crime, it will inevitably lead to the imbalance of crime and punishment.In addition, the Opinions make it clear that only two cases of intentional transmission of novel Coronavirus virus can constitute a crime of endangering public security in a dangerous manner, while other cases that interfere with the prevention and control of COVID-19, cause the transmission of novel Coronavirus virus or pose a serious risk of transmission of Coronavirus virus can only be identified as a crime of hindering the prevention and control of infectious diseases.This is also sufficient to show that the subjective fault of hindering the prevention and control of infectious diseases can only be negligence, but not intentional.Secondly, make clear the distinction between criminal intent and behavioral intent.The “intention” in the criminal intention is opposite to the criminal negligence, which refers to the intention in the subjective state of mind of the harm result.According to the theory of criminal law, the key difference between criminal intention and negligence lies in the aspect of will factor, which is specifically manifested as whether the doer holds an attitude of exclusion, objection or negation to the occurrence of the harm result.Different from it, the “intention” in general behavior is the intention of the dominant behavior.Under normal circumstances, those who interfere with epidemic prevention and control act under their own consciousness and will. In this case, their violation of relevant regulations is undoubtedly “intentional”, which is consistent with “intentional” behavior.This does not, however, mean that the actor is positive or laissez-faire about the consequences of causing the spread of an infectious disease or having a serious risk of spreading it.Even if the perpetrator intentionally carries out the harmful behavior that interferes with epidemic prevention and control, or even knowingly commits the illegal and criminal act, it does not affect that the perpetrator may reject, oppose or deny the harmful results of the spread of infectious diseases, thus establishing the negligent crime.Finally, make clear the difference between the crime of hindering the prevention and control of infectious diseases and the crime of negligently endangering public security by dangerous means.Both crimes are negligent crimes, but the applicable occasions are different.The crime of hindering the prevention and control of infectious diseases is mainly applicable to the harmful behaviors occurring during epidemic prevention and control, while the crime of negligently endangering public security by dangerous means is mainly applicable to daily life.This decision is based on the different legal interests violated by the two crimes. The former crime mainly infringes on the order of infectious disease prevention and control, while the latter crime infringes on public security.It should be noted that serious obstructions during epidemic prevention and control are bound to disrupt the order of epidemic prevention and control.Therefore, during epidemic prevention and control, any act that negligently causes the spread of infectious diseases or has a serious danger of spreading infectious diseases shall be convicted and punished as a crime of impeding the prevention and control of infectious diseases.Source: Criminal Law Research Institute of Shanghai Law Society

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