妨害传染病防治罪适用正当性及其修正

The Legitimacy of Application of the Crime of Impairing the Prevention and Control of Infectious Diseases and Its Amendment

《关于依法惩治妨害新型冠状病毒感染肺炎疫情防控违法犯罪的意见》中明确妨害传染病防治罪的适用遭遇了有违罪刑法定原则的质疑,作为法定犯的妨害传染病防治罪与前置法的衔接不畅引发了修正的思考。应当肯认,当下本罪的适用有其正当性基础和现实需要,且并未扩大刑罚范围,刑法手段理当也是疫情防控手段之一。应充分发挥妨害传染病防治罪的兜底作用,慎用以危险方法危害公共安全罪。从长远看,本罪的修正不宜盲目变更罪名、扩大"传染病"范围,增设罚金刑、区分量刑亦值得商榷,要注重"采取甲类防控措施"机制的缓冲作用,适时考虑通过重新提炼或模糊处理的方式完善本罪的罪状描述。

In the"Opinions",the application of the crime of impairing the prevention and control of infectious diseases has been questioned for violating the principle of legality for crimes and punishments.As a statutory crime,the incompatibility between the crime of impairing the prevention and control of infectious diseases and the preceding law gives rise to the thinking of its amendment.It should be recognized that the application of this crime has its legitimate basis and practical needs,the scope of penalty has not been expanded,and the means of criminal law should also be one of the means of epidemic prevention and control.The crime of impairing the prevention and control of infectious diseases should be brought into full play and the crime of endangering public security by dangerous methods should be used cautiously.In the long run,the crime of impairing the prevention and control of infectious diseases should not be modified blindly and the scope of"infectious diseases"should not be expanded.Attention should be paid to the buffering effect of the mechanism of"taking class A prevention and control measures"and consideration should be given to the improvement of the objective behavior description of the crime by means of refinement or fuzzy treatment.