| During the COVID-19 outbreak,the crime of hindering the prevention and control of infectious diseases,as the core charge of crime-related crimes,has presented a series of problems in judicial application.Guided by problem consciousness and from the perspective of epidemic prevention and control,the problems are analyzed in the judicial application of the crime of preventing and controlling infectious diseases before and after the implementation of the Amendments XI to the Criminal Law.Based on the theoretical basis of the dual interests of public health law,the crime is applied.There are four parts:First of all,the application of the crime of hindering the prevention and control of infectious diseases and the limitations of the view of legal interest before the amendment of criminal law are found in the perspective of epidemic prevention and control.The problems include the “refusal to carry out”behavior of hindering the prevention and control of infectious diseases,the unclear explanation of“serious risk of spreading”,and the difficulty in distinguishing and competing with other crimes.This reflects that the traditional view of legal interest in judicial practice is not independent and depends on public security legal interest.Secondly,on the basis of the discovery of the problems,the contents of the criminal law amendment of the crime of preventing infectious diseases and its influence on the judicial application are investigated.It is necessary to explain the legal interest of the crime to solve the above problems.Although the legislative amendment has partially solved the problems of narrow scope of punishment and vague types of behavior,the identification of “refusal to execute” behavior,the rule of “serious risk of spreading”,the distinction and cooperation between other crimes have not been solved yet.The fundamental countermeasure is to guide the application of this crime by the theory of legal interest.Thirdly,after finding the fundamental countermeasures,the legal interest of the crime of preventing and controlling infectious diseases as dual public health legal interest are studied.In legislation,amending the crime of preventing and controlling infectious diseases embodies the dual position of public health law.In theory,it advocates the theoretical path of collecting legal interest to study the dual public health legal interest.It advocates that the dual public health legal interest is collecting legal interest by means of public health order and for the purpose of individual life and health.It has the characteristics of prevention,control and group and can realize the classification function of legal interest.Finally,the problems in judicial application are solved after the interpretation of dual public health legal interest.As for the interpretation of “refusal to perform” behaviors,the subject of the behavior should be identified according to whether there are conditions to destroy public health order.The behavior objects were evaluated by discriminating the majority of people in public places,mass activities mainly with relatives and friends,and family members living together.Then,the interpretation of “serious risk of transmission” should be judged based on objective facts,quantity and plot factors from the perspective of risk outcome state.In terms of distinguishing and competing with other crimes,the differences between public security,official activities,national border quarantine infectious disease order and dual public health legal interest are analyzed.The crime of endangering public security by dangerous means and the crime of hindering the prevention and control of infectious diseases are imaginary competition and cooperation.Within the scope of a class infectious diseases and infectious diseases for which prevention and control measures have been taken according to law,the basic provisions of the crime of impeding frontier health and quarantine and the crime of impeding the prevention and control of infectious diseases shall be concurred by legal provisions. |
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