疫情期间哄抬物价行为的刑事规制

Criminal Regulation of Price Hikes During the Epidemic Period

将疫情期间哄抬物价行为认定为非法经营罪,源于相关司法解释的规定。从应然层面看,此类行为的本质特征不在于扰乱市场秩序而在于妨害疫情防控,将其解释为“其他严重扰乱市场秩序的非法经营行为”违反了同类解释规则,前置行政法的位阶也存在争议;以司法解释突破立法将其径行认定为非法经营罪存在程序瑕疵。此类行为的刑事规制应从非法经营罪转向妨害传染病防治罪,并通过修订扩大妨害传染病防治罪的适用范围予以适用。从实然层面看,在我国《刑法》相关规定尚未修订、疫情紧急的现状下,依据司法解释以非法经营罪规制此类行为,亟需明确疫情期间的起止时间、防疫物资的范围、哄抬物价的幅度等具体要件,以期精准适用刑法。对于传染病以外的突发事件,可在危害公共安全罪一章中增设“妨害突发事件应对罪”。

The price hikes are determined as the crime of illegal operation during the epidemic period,which is due to the provision of the relevant judicial interpretations.From the"should-be"perspective,the essential nature of such acts lies not in disrupting the market order but in obstructing the prevention and control of the epidemic,so interpreting price hikes as"other illegal operational act that seriously disturbs the market order"is in violation of ejusdem generis rule,the rank of pre-administrative law is also controversial,and there are procedural defects in directly determining such act as the crime of illegal operation in judicial interpretation by going beyond the legislation.The criminal regulation of such act should be changed from the crime of illegal operation to the crime against the prevention and control of infectious diseases,and the latter crime should be amended to expand its application scope and then applied.From a practical point of view,in current situation that the legislation has not been amended and the epidemic state is in emergency,when the judicial interpretation uses the crime of illegal operation to regulate such acts,it is necessary to clarify the commencement and termination dates of the epidemic period,the scope of epidemic prevention materials,the extent of price hikes and other specific elements,so as to realize precise application.For emergencies other than infectious diseases,the crime against the treatment of emergences may be added in the Chapter of crimes against public security.