Research On Issues Related To The Crime Of Dereliction Of Duty In The Prevention And Control Of Infectious Diseases

The prevention and control of infectious diseases is a relatively complex system project,and the supervision and management of the epidemic plays a key role in the overall epidemic prevention work.Taking the new crown epidemic as an example,although with the decline in the pathogenicity of the novel coronavirus pneumonia and China has gradually liberalized the control of the new crown epidemic,there have been ineffective performance of duties,dereliction of duty and other behaviors in some areas in the critical period of the epidemic,thus the normalization of prevention and control has broken the prevention and control many times.Therefore,on the one hand,we must remember the painful lesson of poor epidemic prevention and control;More importantly,by summarizing the gains and losses of this epidemic prevention and control,we can deal with other diseases that may appear in the future.Article 409 of China’s Criminal Law stipulates the crime of dereliction of duty in the prevention and control of infectious diseases,which is a special provision for the crime of dereliction of duty in the field of prevention and control of infectious diseases.Due to the outbreak of the new crown epidemic,although this crime has not fully played its role in legal regulation in the early stage of responding to and regulating the prevention and control of infectious diseases,it has received great attention in both theoretical and practical circles with the development of the epidemic.Therefore,it is necessary to deeply consider and solve the problems of determining this crime in judicial practice by analyzing actual cases.This thesis is divided into four parts to study the main problems in the application of the crime of dereliction of duty in the prevention and control of infectious diseases,and the author puts forward personal opinions according to the overall sub-structure of raising questions(Part I)-analysis of specific problems and solving problems(Parts II,III and IV):The first part aims to reflect the problems existing in judicial practice of this crime in combination with the background of the actual epidemic and typical cases in practice,and summarize the three main problems,including the vague scope of the subject,the unclear determination of "serious irresponsibility",and the difficulty in determining causation.These three aspects will be studied below and recommendations will be made to improve the application of this crime.In the second part,in view of the fact that the determination of dereliction of duty crimes is necessary to be related to the scope of duties,and clarifying the nature and scope of the subject of this crime according to the current law,and making suggestions to expand the subject scope of this crime according to actual needs,is a primary issue raised in this thesis;In the third part,through the qualitative analysis of the elements of "serious irresponsibility",on the basis of "subjective theory" and "objective theory",this paper advocates the definition of this element by the "subjective and objective unity theory",and clarifies the connotation and nature of the "seriously irresponsible" element of this crime,that is,what is "serious irresponsibility" from the two dimensions of the actor’s objective behavior performance and subjective negligence;In the fourth part,this thesis argues that the judgment path of the causal relationship of this crime should adhere to the two-level judgment mode of "attribution to blame".Precisely speaking,the "conditional theory of legality" should be applied to resolve factual attribution,while the "objective attribution theory" should be used to address consequential attribution.