On The Judicial Application Of The Crime Of Impairing Public Service In Public Health Emergencies

At the beginning of the outbreak of the new crown epidemic,the virus was complex and ferocious,so China immediately launched and strictly implemented the deployment of epidemic prevention and control measures,taking epidemic prevention and control as the country’s first priority.China’s highest judicial organ also issued the "Opinions",pointing out that measures such as epidemic prevention,quarantine,compulsory isolation,and compulsory treatment taken to perform prevention and control measures in accordance with the law are regarded as performing official duties,and whether epidemic prevention staff engaged in epidemic prevention and control work have the status and establishment of public servants.As the virus continues to mutate,its danger is greatly reduced,so after three years of epidemic prevention and control measures,China will initially open up on December 5,2022,and the above-mentioned epidemic prevention measures will also disappear in our daily lives.Three years of epidemic prevention and control have won decisive victories,but in response to public health emergencies such as the new crown epidemic prevention and control period,there are deficiencies in China’s response to and handling of epidemic-related crimes and areas worthy of reflection and improvement.Correcting past deficiencies is to better respond to the contingencies faced in the process of dealing with future development.In order to punish illegal and criminal activities during the epidemic prevention and control period in accordance with the law,the Supreme People’s Procuratorate has issued a typical case guide to explain the direction of conviction and punishment of crimes of obstructing public service in the application of judicial practice,and also provides the main trial reference basis for judges to deal with obstructing official duties in public health emergencies.However,it also exposes the focus of controversy over the judicial application of this crime in response to public health emergencies.Through the analysis and study of the constituent elements and the main thrust of the judgment in typical cases of the crime of obstructing public service,it is found that in the judicial application of this crime,there are problems such as the loose determination of violent means,the lower minimum requirement for the degree of violence,the excessive leniency of the identification of the subject of official duties,the lack of review of the legality of the procedures for the execution of official duties,and the improper determination of the time frame for "performing official duties in accordance with law".In order to propose solutions to the application of the crime of obstructing public service in public health emergencies in the future,this paper first analyzes the comprehensive and strict criminal policy in public health emergencies,and explains the tendency of criminal policy to apply criminal law at that time.A comprehensive and strict criminal policy will inevitably lead to severe crackdowns on crimes and punishment of the perpetrators’ criminal acts,resulting in different degrees of expansion in judicial practice in order to implement a comprehensive and strict criminal policy.Secondly,this paper immediately discusses the ambiguity of the application standards of this crime,so as to put forward requirements for solving the application problems: first,in order to protect the protection legal benefits of this crime,it should be clear that violent means can be carried out against objects,but the objects of crime that obstruct the violent means of public service must be restricted and restricted;It is demonstrated that the degree of violence of the crime of obstructing public service should adopt the position of a specific dangerous offender,which not only ensures the smooth conduct of official duties,but also avoids the abuse of this crime;Second,it is necessary to clearly limit and restrict the scope of the subject of public service execution,otherwise it is difficult for the general public to grasp the scope of the subject of public service,which will lead to a lack of reasonable predictability in understanding the scope of the subject of official execution;Attach importance to the procedural legality of the execution of official duties,ensure the authority of state organs in performing their duties,and at the same time protect the legitimate rights and interests of the people;Adopt a logically interpreted viewpoint to determine the time frame for "performing official duties in accordance with the law",reasonably regulate the timeliness requirements of this crime,and demonstrate the legitimacy and necessity basis of the viewpoint.