新过失论之提倡——兼论后疫情时代妨害传染病防治罪的主观责任

The Promotion of the New Negligence Theory——Also on the Subjective Responsibility for the Crime of Obstructing the Prevention and Control of Infectious Diseases in the Post-epidemic Era

后疫情时代的社会背景、社会生活规律以及所呈现的表面变化与本质变化符合新过失论的理论基础。疫情防控期间有关疫情防控的犯罪行为多以妨害传染病防治罪定罪处罚。对于妨害传染病防治罪的过失认定,有必要采纳新过失论,着重考量对危害结果的回避义务是否履行。在司法实践中,对妨害传染病防治罪的认定应以行为人是否实施义务违反的行为为主,对防疫义务进行类型化,在行为人认识到自身的行为属于违规行为时,肯定行为人预见义务的违反,随后判断结果回避义务是否违反,最终判断过失犯是否成立。

The social background, the law of social life, the surface change and the essential change presented in the post-epidemic era conform to the theoretical basis of the new theory of negligence. During the period of epidemic prevention and control, most of the criminal acts related to it were convicted and punished for obstructing the prevention and control of infectious diseases. For the fault determination of the crime of obstructing the prevention and control of infectious diseases, it is necessary to adopt the new theory of negligence, and to consider whether the obligation to avoid the harmful results is fulfilled. In judicial practice, the determination of the crime of obstructing the prevention and control of infectious diseases should be based on whether the perpetrator has carried out the act to violate the obligation, and type the obligation of epidemic prevention, affirm the violation of the actor’s foreseeable obligation when the perpetrator realizes that his behavior is a violation, and then judge whether the result avoidance obligation is violated, and finally judge whether the negligence is established.