Study On Judicial Application Of Crime Of Obstruction Of Prevention And Control Of Infectious Diseases

In Article 330 of China’s Criminal Law,it is a relatively "unpopular" crime.Before the outbreak of COVID-19,there was basically no scope for judicial application.The main reason is that the object of the crime is not clear enough.According to the provisions of the Criminal Law,the crime must cause the transmission or serious risk of Class A infectious disease,while COVID-19 virus does not belong to the category of Class A infectious disease,so there are few cases of the crime in judicial practice."SARS" in 2003,although the Supreme Court,the Supreme Procuratorate issued on the nuisance prevention and control of sudden infectious diseases and other criminal cases of law interpretation(hereinafter referred to as "explanation"),"but the" interpretation "SARS" the infectious disease nature belongs to class A infectious disease has not been clearly stipulated,leading to the crime in the SARS period is not applied.In June 2008,the Supreme People ’s Procuratorate,the Ministry of Public Security issued the Supreme People’ s Procuratorate,the Ministry of Public Security on the jurisdiction of criminal cases prosecution standards(a)(hereinafter referred to as "prosecution" standard),in the way of judicial interpretation of the nature of the criminal object by "class A infectious diseases" expanded interpretation as "class A or according to the management of infectious diseases".After the outbreak of COVID-19,in January 2020,the National Health Commission announced that it classified COVID-19 virus as Class B infectious diseases and took the prevention and control measures of Class A infectious diseases.In February 2020,after the Supreme People ’s Court,the Supreme People’ s Procuratorate,the Ministry of Public Security and the Ministry of Justice(hereinafter referred to as the "two high two")issued the Opinions on the Prevention and Control of Crimes Against Novel Coronavirus-19(hereinafter referred to as the Opinions),the crime was truly applicable to justice.And the promulgation of the Amendment(11)of the Criminal Law at the end of 2020 clearly stipulated that the applicable objects of this crime are Class A infectious diseases and the infectious diseases determined to take the prevention and control measures of Class A infectious diseases.So far,the provisions of the Chasing Procedure Standard were elevated to legislation,realizing the transition from judicial criminalization to legislative criminalization.Based on the background of the coronavirus outbreak,combined with the Criminal Law,opinions,combined with the relevant cases in judicial practice,we explore the crime of obstructing infectious disease.On the one hand,we attempt to clarify the elements of the crime,strengthen the correct understanding of the crime,trying to solve the relevant problems of judicial identification and application.The line text structure of this article is the total score structure,and mainly includes the following four parts:Part I,an overview of the crime of obstructing the prevention and treatment of infectious diseases.The first half details the legislative evolution of the crime of obstructing the prevention and treatment of infectious diseases,According to the chronological order of the introduction order,The relevant legal specifications are introduced in turn,It also respectively expounds the nature and status of the Opinions,the relationship between the Interpretation and the Opinions,the relationship between the Criminal Law and the Litigation Standards,and the Opinions,To provide a legislative basis for the study of the judicial application of this crime;The second half is combined with relevant cases,The present application of the justice of this crime is analyzed,Summarize the difficult problems existing in the application of justice,For example,there are difficulties in the identification of the crime,difficulty in the identification of some special problems in the crime,and easy to confuse between the crime and other relevant crimes,These difficult issues will be discussed in the next three parts of the body,respectively.Part II,the identification of the constituent elements of the crime of obstructing the prevention and treatment of infectious diseases.Article 330 of the Criminal Law does not make clear whether the subjective aspect of the crime is intentional or negligent.At the same time,there are also great disputes over the determination of the scope of the crime,type of behavior,harm results,and causal relationship,leading to great resistance in the judicial application of the crime.This section is based on the "second-class" crime theory,Analysis the elements of this crime,For the determination of the objective and illegal elements of this crime,Mainly from the scope of the behavior subject,behavior mode,harm results,causal relationship and other aspects,Analyzing the respective controversies existing in the application of justice,And clearly defined the respective identification criteria,For the determination of the subjective guilt of this crime,In turn,the theories of "negligent speaking","intentional speaking","objective excess factor speaking",and "mixed speaking" are introduced,By refutation of "negligent speaking," "objective overfactor words," "mixed words," Affirmed "deliberately deliberately," Holding that the subjective guilt of this crime was intentional,The actor subjectively not only intentionally the implementation of violation of the Law on the Prevention and Control of Infectious Diseases,The harm are also intentional,Delibertent belonging to the result,Including direct intentional and indirect intent.Part III,the determination of certain special problems in the crime of obstructing the prevention and treatment of infectious diseases.The question of judicial application of each crime,including two parts of conviction and sentencing,is strictly speaking,the second part of this article mainly discusses the conviction of the issue of this crime.Therefore,the special problems discussed in this part mainly refer to the problems that affect the sentencing of the crime,including guilty admission,common crime,aggravating result,etc.,from the "whether can apply","how to apply" two aspects,first explain whether the three special problems can be applicable to the crime,and then clarify the three special problems in the judicial application.Part IV,the discrimination and analysis of the crime of obstructing the prevention and treatment of infectious diseases and other related crimes.This part mainly from the main body of behavior,behavior,crime results,subjective crime,distinguish the crime and endangering public safety,negligence by dangerous method to endanger public safety,hinder the crime of border health and quarantine crime,through analysis and comparison to find out the common points and differences,at the same time,the actor should be convicted put forward their own views.