新冠肺炎疫情防控背景下刑法父爱主义之提倡

Advocacy of Paternalism in Criminal Law from the Perspective of COVID-19 Prevention and Control

为防控新冠肺炎疫情而采取刑法工具主义方式,会致犯罪圈扩张和重刑主义,动摇罪刑法定原则;而刑法谦抑主义强调非犯罪化,无法适应疫情防控期间的社会需求。基于两者在现实中的困境,提倡兼顾秩序维护和人权保障的刑法父爱主义,再引入比例原则加以限制,可突破樊篱及可能的缺陷,在实践中构建秩序与人权保护的规则制度。

The adoption of the instrumentalism of criminal law for the prevention and control of COVID-19 will lead to the expansion of the crime circle and the doctrine of severe punishment,and shake the principle of legal pun⁃ishment for crimes.However,the modesty of criminal law emphasizes the deccriminalization,which cannot meet the social needs during the pandemic prevention and control period.Based on their predicament in reality,we should advocate the paternity of criminal law which gives consideration to both the maintenance of order and the pro⁃tection of human rights,then introduce the principle of proportionality to restrict it,so as to break through the barri⁃ers and possible defects,and construct the rules and systems for the protection of order and human rights in practice.