拒绝执行新型冠状病毒肺炎防疫措施行为的入罪边界

The Incriminating Boundary in Refusing to Implement COVID-19 Prevention Measures

妨害传染病防治罪保护双阶法益,其第一阶法益为传染病防控秩序,第二阶法益为不特定公民生命健康权;故在妨害传染病防治行为入罪逻辑中,第一阶法益侵害是充分条件,将第二阶法益陷入危险境地是入罪界限。从双阶法益角度出发,应当以行政违法性作为入罪前提,将传播危险性视为必要条件,进而确定拒绝执行新型冠状病毒防疫措施行为的入罪边界。

The crime of interfering with the prevention and treatment of infectious diseases protects two layers of legal interests:the first one is the prevention and control of infectious diseases,and the second is the right of the life and health of unspecified citizens.Accordingly,in the logic of incriminating the behaviors of interfering with the prevention and treatment of infectious diseases,the infringement of the first legal interests is a sufficient condition,and the endangering of the second legal interests is the limit of crime.From the perspective of two layers of legal in⁃terest,administrative illegality should be taken as the premise of crime,and transmission risk should be considered as a necessary condition,so as to determine the boundary of the crime of refusing to implement COVID-19 preven⁃tion measures.