Study On The Application Of The Crime Of Hindering The Prevention And Control Of Infectious Diseases

Since 2020,COVID-19 has broken out and spread across the world,illegal and criminal activities related to the epidemic have occurred from time to time.In order to protect people’s lives and health,maintain social order and ensure the smooth progress of epidemic prevention and control,it is necessary to punish illegal and criminal acts related to the epidemic.The judicial interpretation jointly formulated by the Supreme People’s Court,the Supreme People’s Procuratorate,the Ministry of Public Security and the Ministry of Justice has activated the crime of hindering the prevention and control of infectious diseases,which has been shrouded in secrecy for many years,but it has only made indicative provisions on the application of the crime,which is difficult to cope with the complicated judicial practice.The study on the application of the crime of hindering the prevention and control of infectious diseases is not only helpful to clarify the controversy in theory,but also helpful to guide judicial practice.The crime of hindering the prevention and control of infectious diseases has experienced the revision from scratch,the revision of the preliminary law and the amendment of the Criminal Law(eleventh).There are many problems in defining the protection law interests of this crime as management order or compounding legal interests,but defining it as public health security is more in line with the provisions of criminal law and pre-law,can also screen administrative and criminal illegal,and give play to the illegality evaluation function of legal interests.The application of this crime has played a certain role in preventing and controlling the epidemic and stabilizing social order,but there are still some problems in application.The harm result of this crime includes the actual harm result and the concrete danger result,the actual harm result can be judged by medical means,but the specific danger judgment standard is not uniform.In practice,the causality is not recognized,the traditional causality theory is difficult to solve the problem of attribution,and the causality of epidemic diseases is difficult to be introduced into the judgment of the causality of this crime because it is difficult to meet the criminal procedure standards.In judicial practice,there are contradictions in the determination of subjective guilt of this crime,both as intent and negligence.In criminal law theory,there are intentional theory,negligence theory and mixed crime theory.In view of the application of this crime in judicial practice,for the judgment of "serious danger of transmission",we can adopt a revised objective theory,combining the subject,the behavior mode and the actual harm consequences to judge whether there is a specific danger.Although there is still some controversy in the objective imputation theory,it is necessary to learn from some specific rules in the theory to examine whether the behavior creates and realizes the prohibited risk,and whether the result is within the protection scope of the constituent elements.It is not against the principle of statutory punishment to identify the subjective form of crime as negligence,and it is more consistent with the position of the result standard of criminal law.The new fault theory should be adopted to determine the subjective guilt.Whether the perpetrator constitutes the crime can be judged by the objective breach of duty of care and the subjective possibility of foreseeing.