突发公共卫生事件中刑法第330条之反思——以刑罚功能的实现为视角

Reflections on Article 330 of the Criminal Law in Public Health Emergencies——From the Perspective of the Realization of Penalty Function

我国刑法第330条规定的妨害传染病防治罪对维护公共卫生安全发挥至关重要的作用。本罪设置的刑罚是“有期徒刑或者拘役”,并对单位犯本罪的规定了罚金刑。事实上,仅依靠判处“有期徒刑或者拘役”短期自由刑对本罪治理效果有限,不仅刑罚特殊预防功能难以实现,事实上还遭遇刑罚一般预防功能搁浅困境,将保安处分作为与刑罚并列的类型引入妨害传染病防治罪的处罚制度体系必要且正当,这是基于社会责任论与预防刑的内在要求,是刑事治理现代化迫切需要,坚持和发展了刑法谦抑性理论。建议在妨害传染病防治罪中增设如监护隔离、更生保护等对人的保安处分和诸如封闭营业场所、停止业务等对物的保安处分,同时完善现有刑罚制度,增设管制刑和对自然人罚金刑,建立刑罚与保安处分衔接机制,为新时代国家公共卫生安全提供坚实法治保障。

The crime of obstructing the prevention and control of infectious diseases stipulated in Article 330 of China's Criminal Law plays a crucial role in maintaining public health safety.The penalty set for this crime is“Fixed-term Imprisonment or Detention”,and a fine is provided for units who commit this crime.In fact,relying solely on the short-term free punishment of“fixed-term imprisonment or detention”has limited effectiveness in the governance of this crime.Not only is it difficult to achieve the special prevention function of the penalty,but it also faces the dilemma of the general prevention function of the penalty being stranded.It is necessary and legitimate to introduce security measures into the punishment system of the crime of obstructing the prevention and control of infectious diseases as a type of punishment,which is based on the inherent requirements of social responsibility theory and preventive punishment.It is an urgent need for the modernization of criminal governance,and has not deviated from but adhered to and developed the theory of criminal law's moderation.It is recommended to add security measures such as guardianship and isolation,rebirth protection,and other measures to prevent and control infectious diseases,as well as security measures such as closing business premises and stopping business.At the same time,it is recommended to improve the existing penalty system,add control penalties and fine penalties for natural persons,establish a mechanism for connecting punishment and security measures,and provide a solid legal guarantee for national public health safety in the new era.