疫情背景下“妨害传染病防治罪”的认定及立法完善

Identification and legislative perfection of the crime of obstructing the prevention and control of infectious diseases under the background of epidemic situation

通化市“0号传染源”一案由检察院提前介入、引导侦查在网上引发热议。涉案人员的行为是否应当定妨害传染病防治罪,罪轻或是罪重,其危害结果如何转化为量刑情节?海南东方“口水案”应以妨害传染病防治罪定罪还是以危险方法危害公共安全罪定罪处罚?从严从快的执法活动虽能暂时性取得疫情暴发期间我们所需要的犯罪控制效果,但却有违背刑法谦抑性及执法人性化的倡导。学界需进一步完善对妨害传染病防治罪的理性认识,明确本罪构成要件的涵盖范围,贯彻特殊时期人性化执法理念并斟酌采纳相关立法建议,为我国突发公共卫生事件处理和后疫情时代的司法审判工作提供可借鉴的参考。

The case of"No.0 infectious source"in Tonghua city was intervened and guided by the procuratorate in advance.The case has attracted heated discussion on the Internet.Is the behavior of the persons involved in the case normal citizens'daily life or a criminal act that hinders the epidemic situation?Whether the act should be defined as the crime of obstructing the prevention and control of infectious diseases,whether the crime is light or heavy,and how can the harmful results be transformed into sentencing circumstances?Should Hainan Dongfang's"saliva case"be convicted and punished for the crime of obstructing the prevention and control of infectious diseases or the crime of endangering public security by dangerous means?Although strict and fast law enforcement activities can temporarily achieve the crime control effect we need during the outbreak of the epidemic,they are contrary to the advocacy of the modesty of criminal law and the humanization of law enforcement.The academic community needs to further improve the rational understanding of the crime of obstructing the prevention and control of infectious diseases,clarify the coverage of the constituent elements of this crime,implement the concept of humanized law enforcement in the special period,and consider adopting relevant legislative suggestions,so as to provide a reference for the handling of public health emergencies and the judicial trial in the post epidemic era in China.