Study On The Application Of Crime Of Prevention And Treatment Infectious Diseases

Since the outbreak of COVID-19,illegal and criminal acts related to the prevention and control of the epidemic have occurred from time to time.These illegal and criminal acts have disturbed social order and caused considerable adverse effects on the prevention and control of the epidemic.In the judicial practice during the epidemic prevention and control period,the crime of impeding the prevention and control of infectious diseases has been reactivated to adjust the illegal acts of impeding the prevention and control of infectious diseases during the epidemic period.Since this crime was rarely applied before the COVID-19 epidemic,there is no unified standard for its application in judicial practice.Although the Supreme People’s Procuratorate and the Supreme People’s Procuratorate have published a number of typical cases involving epidemic diseases and acts involving the prevention and treatment of infectious diseases,and the Criminal Law Amendment(XI)passed on December 26,2020 also revised part of the charge,there are still some problems in the application process of the charge.Through the analysis of the legislation and judicial status quo of this crime,the author puts forward a targeted way to improve it.This paper is mainly divided into four parts:The first part: the definition of the crime of preventing and controlling infectious diseases.One is the connotation of infectious diseases.The second is the objective requirements of the crime of preventing and controlling infectious diseases.To support the theory of unitary legal interests;The scope of the pre-specification can be understood in a broad sense,including laws,administrative regulations and other normative documents related to the prevention and treatment of infectious diseases.The third is the subjective elements of the crime of preventing and controlling infectious diseases.The general theory of our country thinks that the subjective aspect of this crime is negligence,and there are also some views such as "the theory of intention","the theory of objective excess elements" and "the theory of mixed fault" under the theory of intention.The second part: the legislative investigation of the crime of preventing and controlling infectious diseases.First,the domestic legislative evolution of the crime of obstructing the prevention and treatment of infectious diseases.Secondly,it analyzes the legislative status quo of this crime at home and abroad.The foreign legislation mode of this crime is mainly divided into three kinds: the crime of endangering public security,the crime of endangering public health and the crime of endangering public health.Some foreign countries stipulate that the way of action of the crime is not enumerated,which is different from the legal way of action in China.Some foreign countries did not limit the scope of infectious diseases in this crime;Some foreign countries emphasize strict liability for the crime committed by the legal person.Subjectively,some regions outside the region advocate "mixed fault" and set different legal penalties for it.The third part: the judicial status quo of the crime of preventing and curing infectious diseases.First,the problem of behavior mode.It is mainly concentrated in behavior performance,and there are problems in the connection between behavior mode and corresponding content of preposition method.Second,the penalty application defect.It is unreasonable to propose that the actual crime and dangerous crime should be set different statutory punishment.There is no provision on fine punishment for natural person.Third,the judicial practice deliberately avoided the subjective aspect of the crime of preventing and controlling infectious diseases.Fourth,when the penalty results and causality of the determination.In the trial practice,there are insufficient phenomena of the penalty result and the determination of causality.Fifthly,it is difficult to distinguish from related crimes that endanger public security.The fourth part: The perfect path of the crime of preventing and treating infectious diseases.First,the adjustment and application of "strict" criminal policy.Under the normal situation of the epidemic,the criminal policy of strict law can be adjusted in stages and regionally.The second,additional provisions and punishment.Additional provisions for the bottom and fine punishment of natural person.Third,make clear the judgment standard of negligence.To determine the subjective aspect of the crime of preventing and controlling infectious diseases is the fault of overconfidence.Fourth,accurately identify dangerous crime.Determine that the dangerous crime in this crime is a specific dangerous crime.Because of the particularity of infectious disease crime.Fifthly,the causality is determined by introducing the theory of epidemical causality.Sixth,distinguish the crime of impairing the prevention and treatment of infectious diseases from the related crimes of endangering public security.In addition to the difference of constitutive elements between the crime of endangering public security by dangerous means and negligent crime,the crime of preventing and controlling infectious diseases should be applied first when the two crimes are in conjunction with each other.