拒绝执行防疫措施行为的行刑衔接问题研究--以行政违法与刑事违法为切入点

Study on The Connection between Execution and Punishment of Refusing to Implement Epidemic Prevention Measures-- Administrative Violation and Criminal Violation as the Starting Point

关于拒绝执行防疫措施行为的行刑衔接问题,理论上有质的区别说与量的区别说之争。质的区别说认为只有违反刑法规范目的的行政违法行为才能认定为刑事违法行为;量的区别说认为不同法域的规范目的相同,达到一定量的法益侵害的行政违法行为即可上升为刑事违法行为。由于《刑法》第330条与《传染病防治法》相关法条的规范目的趋于一致,因此采用量的区别说具有合理性。对量的考察成为探求行刑衔接的方式,对客观不法程度和主观不法程度的考察则是拒绝执行防疫措施行为不法程度的两个量化标准。

In theory, concerning the problem of execution convergence of refusing to implement epidemic prevention measures, there is a dispute between the theory of qualitative difference and the theory of quantitative difference. According to the theory of qualitative difference, only the administrative illegal act that violates the purpose of criminal law can be regarded as criminal illegal act;according to the theory of quantity difference,different jurisdictions have the same legal purposes, and administrative illegal acts that reach the degree of infringement of legal interests can be upgraded to criminal illegal ones. The difference lies in whether the legal purposes of different jurisdictions are the same. Since the purpose of article 330 of the criminal law is consistent with that of relevant articles of the law on prevention and control of infectious diseases, it is reasonable to adopt the theory of quantity differentiation. The investigation of quantity has become a way to explore the connection of execution. Through the promotion of objective illegality andsubjective illegality, we may make the behavior of intentionally refusing to implement epidemic prevention measures and causing specific danger or behavior into the regulation of the crime of obstructing the prevention and control of infectious diseases.