Study On The Crime Of Endangering Public Security By Dangerous Means Applied To The Acts Of Spreading Infectious Diseases

During the SARS epidemic in 2003,the judicial interpretation stipulated that the act of spreading an outbreak of infectious diseases is subject to the crime of endangering public security by dangerous means(negligence).During the period of COVID-19 epidemic in 2020,in the form of policy documents,the behaviors of spreading sudden infectious diseases are regulated from two aspects.On the one hand,the antecedent crime can be applied;On the other hand,the crime of obstructing the prevention and treatment of infectious diseases is activated and used.The Amendment(XI)to the Criminal Law passed on December 26,2020 made a legislative amendment to the crime of obstructing the prevention and treatment of infectious diseases.Thus,the application of the crime of obstructing the prevention and treatment of infectious diseases has a perfect justification basis.The occurrence of this series of changes also reflects the tendency of judicial practice to apply the crime to a certain extent.However,this crime is not enough to regulate all kinds of behaviors of spreading infectious diseases.In this case,in order to more accurately apply the criminal law when punishing the crime of spreading infectious diseases,it is necessary to study the crime of endangering public security by dangerous means,to explore the applicable space of this crime,and to discuss the distinction and the problem of co-application of the two crimes.The study of this crime,starts from the activation and use of the crime of obstructing the prevention and treatment of infectious diseases,firstly analyzes the process and reasons of the transformation of the crime from "idle" state to widespread application,and secondly demonstrates the necessity of the crime of endangering public security by dangerous means under the background of such a change of tendency.On the basis of the above mentioned problems,this paper carries out a study on the identification and application of the crime of endangering public security by dangerous means in the category of spreading infectious diseases.In the identification of crime,first of all,it is clear that the legal interest to be protected is public security,which specifically refers to the life and health safety of most people.Then it demonstrates the specific identification of crime from two aspects of objective class and subjective crime.In the identification of objective class,the actor should not only have the possibility of spreading infectious diseases,but also be able to recognize this possibility.Behaviors should be equivalent to "dangerous methods",which not only have the characteristics of behaviors that are easy to spread and difficult to control,but also have the characteristics of results that endanger the lives and health safety of most people.The harm result should constitute the concrete danger to the life and health safety of most people,and the negligent crime should cause the result of the actual spread of infectious diseases.The identification of causality should be based on epidemiological causality theory and modern technology such as big data.In the determination of subjective guilt,it is difficult to identify and distinguish between indirect intentional fault and overconfident fault.The key to the distinction is whether the actor has sufficient knowledge of the infectious disease.The research on the distinction between the two crimes is carried out from five aspects.In the aspect of protecting legal interests,the acts that constitute the antecedent will directly infringe upon or endanger the life and health of most people.The behavior that constitutes the latter crime directly infringes on the order of prevention and control of infectious diseases.In the aspect of the subject of behavior,the scope of the subject of behavior of the former crime is relatively narrow,and it should be checked whether it is suitable through medical diagnosis and careful judgment of its own understanding.The subject of subsequent crime is the general actor.In terms of the type of behavior,the key to distinguish the two crimes lies in whether the behavior has the equivalent of "dangerous methods" to the extent of endangering public security.In the aspect of the harm result,the former crime requires the actual harm result of spreading infectious disease to the negligent crime,but the latter crime can be established as the negligent dangerous crime.In the aspect of subjective guilt,the two crimes both have intentional and negligent.The two crimes can be imagined congruence.In the determination and application of the crime,we should adhere to the objective judgment logic before the subjective judgment logic,and make reasonable use of the logic in the actual cases.