妨害传染病防治罪的适用分析

The Judicial Application of the Crime of Obstructing the Prevention and Control of Infectious Diseases

与涉及传染病防治的其他罪名相比,无论从适用场域、主体范围还是法定刑幅度上来看,妨害传染病防治罪理应在防控传染病方面发挥更为积极的作用。为了增强本罪的适用性,应当认定本罪的保护法益是存在位阶设定的双重法益,由传染病防治秩序法益发挥入罪的指引功能,而公共卫生与国民健康权法益发挥的则是入罪的终局功能。在本罪的认定方面,《刑法修正案(十一)》增加“按照甲类管理的传染病”的表述提升了本罪的适用性;关于“供水单位”的认定,应采用实质标准说;应当依据机能二分说判断“拒绝消毒处理行为”与《刑法修正案(十一)》新增的“未消毒处理行为”;应当根据义务犯理论认定“准许与纵容”;对于隐瞒症状、隐瞒接触史、拒不执行防控措施而进入公共场所的情形,一般应当认定为妨害传染病防治罪而非以危险方法危害公共安全罪。

Compared with other crimes involving prevention and treatment of infectious diseases, the crime of interfering prevention and treatment of infectious diseases should play a more positive role in controlling infectious diseases in terms of the application scope, subject range and legal penalty. In order to improve the applicability of the crime of interfering prevention and treatment of infectious diseases, it should be identified that legitimate rights and interests protected by the establishment of this crime are dual legitimate rights and interests involving hierarchical settings. In other words, legal interests concerning the infectious disease prevention and control order should give full play to their guiding role of incrimination, while legal interests protected by the public health and national health right should give full play to their finalizing functions of incrimination. Regarding the determination of this crime, Amendment 11 of Criminal Law introduces the practice of “infectious diseases managed by category-A standards” to enhance the applicability of this crime. As to the determination of “water supply units”, substantial standards should be adopted. The “behavior of rejecting disinfection” and the “behavior of no disinfection” introduced by Amendment 11 of Criminal Law should be judged by dichotomy of functions. Meanwhile, “permission and connivance” should be determined by the theory of obligation crime. Circumstances in which the symptoms, contact with infectious disease carriers, and rejection to implement prevention and control measures to enter public spaces should generally be regarded as the crime of interfering prevention and treatment of infectious diseases rather than the crime of jeopardizing public security via dangerous means.