The outbreak of the COVID-19 pandemic has brought this crime,which is previously rarely applied before,into judicial practice on a large scale.As an "old" crime in criminal law and a "new" crime in judicial practice,The Criminal Law Amendment(XI)improves the relevant provisions on the crime,legislatively expand the applicable scope of infectious diseases,not only responds to the voice of academic circles,but also improves the epidemic prevention and control system.In this crime,"there is a serious risk of dissemination" is abstract compared to "causing dissemination",and it is more difficult to grasp in judicial practice.Taking the new crown pneumonia epidemic as the starting point,based on the application of the relevant provisions on the crime and the "Amendment to the Criminal Law(XI)" after the outbreak of the epidemic,combined with the spread characteristics of infectious diseases,this paper conducts a doctrinal analysis of this crime,which is divided into the following parts: The first part clarifies the amendments of the crime in the Criminal Law Amendment(XI)and the reasons for them,so as to explore and understand specific issues,puts forward practical issues on the basis of analyzing the legislative development and judicial application of the crime.The second part starts from the duality of legal interest theory,by studying the dual legal interests of this crime,the management order of infectious disease prevention and control and the risk of others contracting infectious diseases,it can be realized that "there is a serious risk of transmission" is a specific and highly dangerous state with a tendency to "actually harm".The third part addresses the subjective aspects of this crime,arguing that the subjective guilt of this crime should be negligence,and based on the COVID-19 epidemic,puts forward the objective judgment basis for determining that the perpetrator is subjectively negligent in judicial practice;To explore the necessity of this crime as a risk of negligence and the significance of giving play to the special preventive and general preventive functions of criminal law.Part IV proposes that medical diagnosis is the premise for the application of the crime,and discusses the typological determination of this crime under different medical diagnoses. |