妨害传染病防治罪与相近犯罪关系之辨--以新冠肺炎疫情防控为视角

Debate on the Relationship between the Crime of Obstructing the Prevention and Control of Infectious Diseases and Similar Crimes--from the Perspective of COVID-19 Epidemic Prevention and Control

在《刑法修正案(十一)》颁布前,在立法与司法层面,妨害传染病防治的行为主要以以危险方法危害公共安全罪、过失以危险方法危害公共安全罪和妨害国境卫生检疫罪等相近罪名规制,一定程度上导致新冠疫情防控中对这几种罪名的适用范围难以准确认定。妨害传染病防治罪作为过失危险犯,其入罪条件要低于过失以危险方法危害公共安全罪,当二者发生竞合时,应当按照"重罪优于轻罪"的原则,适用前罪;妨害传染病防治罪与妨害国境卫生检疫罪违反的前置法不同,侧重于对不同危害行为的规制,二者竞合时应以适用妨害传染病防治罪这一相对较重的犯罪为宜。

Before the promulgation of the"Criminal Law Amendment(11)", acts of obstructing the prevention and control of infectious diseases were mainly regulated at the legislative and judicial levels by such similar crimes as crimes of endangering public security by dangerous means, crimes of endangering public security by negligent dangerous means, and crimes of obstructing border health and quarantine. Regulations on similar crimes have to a certain extent affected the scope of application of these crimes in the prevention and control of COVID-19 epidemic. The crime of obstructing the prevention and control of infectious diseases as a negligent dangerous crime has lower conviction conditions for the endangering result than the crime of endangering public security by negligent dangerous means. If the two are overlapping, the principle of"felony is superior to misdemeanor"shall be followed in the obstruction Infectious disease prevention and control crimes;the crime of obstructing the prevention and control of infectious diseases and the crime of obstructing frontier health and quarantine are different in the pre-law, focusing on the regulation of different harmful acts. When the two are in competition, it is appropriate that the crime of obstructing the prevention and control of infectious diseases should be applied as a relatively more serious crime.