| From SARS to COVID-19,the crime of obstructing the prevention and control of infectious diseases has received more and more attention,and it has changed from a zombie state of having but not using to a state of high frequency application nowadays.The Amendment to the Criminal Law(Eleventh)incorporates COVID-19 as a Class B infectious disease into the jurisdiction of this crime,solving the controversy between the practical application and the academic circles about the lack of connection between execution and punishment.However,there are still problems in the application of this crime in judicial practice,such as an excessive range of punishment and blurred boundaries with related crimes.This has led to the phenomenon that the crime is applied too frequently,the crime is different in the same case,and the difference in sentencing is too large in judicial practice.The main reason for this is the relative confusion in the academic community in the understanding of the legal interests protected by this crime,and the inconsistent definition of the elements of this crime.If these problems are not solved,it will be difficult to maintain and realize the modesty and authority of the criminal law.Therefore,it is necessary to correctly define the protected legal interests of this crime and to explain the composition elements in a restricted manner.The protection of the legal interests of this crime has duality,should be the infectious disease control management system and public health.Theoretically,the premise of this crime must be a violation of the relevant provisions of the prevention and control of infectious diseases,that is,a violation of the corresponding system,while the crime requires the results of transmission or danger,that is,the disruption of the order of prevention and control,health or cause a threat.The main body of the act is all units and individuals,that is,the general subject.In terms of the manner of conduct,in addition to the first four clearly defined behavior,the fifth belongs to the bottom of the provisions,does not specify the specific type of behavior,it is necessary to combine the relevant provisions of the Prevention and Control of Infectious Diseases Act to be identified.Violation of the provisions of the Prevention and Control of Infectious Diseases Law does not simply refer to the Prevention and Control of Infectious Diseases Law,but also to the relevant regulations including it,such as the regulations for responding to public health emergencies,as well as the designation of multiple specific policies by the relevant departments in accordance with the regulations.The subjective form of guilt for this crime is not negligence,but should be generalized intent.The perpetrator knows that the act may cause harmful results,but is not sure of the specific scope of the occurrence and the number of results,and does not consider the subjective manifestation of negligence because the statutory penalty is close to the statutory penalty for negligence-type crimes.By comparing the similarities and differences in the legal interests protected and the constituent elements of this crime and related crimes,it is possible to accurately distinguish this crime from the crime of endangering public safety by dangerous means,the crime of obstructing public service,and the crime of spreading infectious disease strains and poisonous strains. |
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