Study On The Crime Of Impairing Infectious Disaase Prevention In The Background Of COVID-19

The crime of impairing infectious disease prevention is a new crime in the criminal law of 1997,However,after the novel coronavirus pneumonia outbreak in 2020,it really entered the judicial practice field,which also brought a new perspective for the study of this crime.The serious consequences of novel coronavirus pneumonia show that it is necessary and urgent to regulate and legislation on the impairing infectious disease prevention.However,due to the incompatibility between the legal provisions and the actual needs of the epidemic situation,this crime has been unable to be applied in judicial practice before.Therefore,it is necessary to conduct a thorough and in-depth study on the basic principle and judicial practice of this crime in novel coronavirus pneumonia epidemic background.In this way,we can deal with major outbreaks more quickly and more mature in the future.This paper summarizes the crime of obstructing the prevention and control of infectious diseases from the following four aspects: the origin of the crime,the nature of the crime,the distinction between crime and non crime,and the distinction between this crime and other crimes.It is clearly pointed out in the constitutive requirements of the crime of obstructing the prevention and control of infectious diseases that the act should violate the administrative laws and regulations of the law on the prevention and control of infectious diseases and meet the constitutive conditions of administrative crime.The key difference between the general illegal act and this crime is that this crime causes class A and infectious diseases managed according to class A to spread or have serious risk of spreading,while the general illegal act does not cause any harmful result or cause less harmful result,such as only causing the spread of class B and class C infectious diseases.Criminal law scholars generally hold that negligent crime can not constitute a crime if it does not produce harmful results,so there is no unfinished form of crime in this crime,and it can not constitute this crime if it causes the same consequences in the event of force majeure and accidents.Compared with the SARS period in 2003,the judicial organs have added this crime when cracking down on the crime of hindering the prevention and control of epidemic situation.Therefore,this paper selects several charges which are easily confused with this crime in judicial practice,and accurately divides this crime and related crimes.The amendment to the criminal law(eleven)has revised the crime of preventing and controlling infectious diseases.In the new perspective of Coronavirus pneumonia epidemic prevention and control,the identification of the constitutive elements of this crime must keep pace with the times.As for the subject of this crime,because the water supply unit needs to have certain qualifications and permission,the analysis thinks that the subject of the first act of this crime,that is,the water supply unit,is a special subject,and the subject of other acts is a general subject.Whether from the perspective of legal punishment or judicial practice,it is more in line with the spirit of legislation to identify the subjective aspect of the crime as negligence,which also leads to the Judicial Dilemma of dangerous crime and joint crime.The analysis shows that the criminal act constituting this crime does not necessarily result in the infringement of public security legal interests,but it will seriously affect the public health order of the country,so the object of this crime is the national management system for the prevention and control of infectious diseases,which is more reasonable.The objective aspect of this crime is that the perpetrator violates the "law on the prevention and control of infectious diseases" and causes the spread of class A infectious diseases or has serious risk of spreading.This paper analyzes the objective practical elements of this crime from four aspects: the identification of "Class A infectious disease","the identification of infectious disease causing class A infectious disease and the identification of infectious disease transmission which is determined to take class A infectious disease prevention and control measures according to law","the identification of serious risk of transmission" and the identification of legal behavior mode.At the same time,it also produces a series of judicial dilemmas,such as the criminal law Before the implementation of the Eleventh Amendment of the People’s Republic of China,the scope of "Class A infectious diseases" is questioned,the rationality of judicial interpretation expanding the application of this crime is questioned,the application of the same legal punishment to the actual offender and the dangerous offender is questioned,the qualitative dilemma of concealing the epidemiological history in judicial application and the investigation dilemma of causality.Finally,aiming at a series of judicial dilemmas arising from the application of the crime of preventing infectious diseases in the background of COVID-19,we further improve the concept of this crime.The criminal policy during the epidemic period should be based on the overall situation of the epidemic prevention and control,and should be strict on the whole,but at the same time,it should also prevent the "one size fits all" approach,analyze the specific problems in the case,and distinguish the subjective motivation of the actor and other factors.In the case that the traditional causality theory can not determine the causality,we choose to apply the epidemic causality to make up for the loopholes in the traditional causality theory.At the same time,the theory of negligent dangerous crime should be admitted and limited to prevent this crime from becoming a pocket crime.I hope that through the discussion of this article,we can solve the Judicial Dilemma in the application of this crime,keep a rational understanding of the behavior of hindering the prevention and control of infectious diseases into the adjustment scope of this crime,and provide help for the perfection of this crime in legislation and the correct application in judicial practice in the future.