重大传染病患者涉罪的社会危险性评估与程序应对

Social Risk Assessment and Procedural Response of MajorInfectious Disease Patients Involved in Criminal Cases

近年来,涉及传播艾滋病病毒和曾被作为“乙类甲管”的新型冠状病毒的刑事案件高发并引起社会各界的高度关注。由于具有严重传播风险,需要特殊治疗并予以分类管理,在追究这两类重大传染病患者犯罪的刑事诉讼中,一线办案人员普遍面临较大压力,担心发生感染事故或职业暴露。受“潜在危险论”影响,在贯彻从严惩治方针时,存在“一押到底”“超期非羁押”等非法治化现象;在作出轻缓化处理时,又出现了“一放了之”“纸面服刑”的个案。随着相关疾病传播概率、危害后果的客观变化,在防疫政策修正后,对涉罪患者社会危险性的认定应当作出适应性调整,甚至根本性转变。当前,有必要系统整合存在不少冲突之处的一系列司法解释。从长远看,根据“以预为先”理念,为有效防治今后可能突发的公共卫生事件,建议在《刑事诉讼法》第五编中增设“涉重大传染病刑事案件特别程序”一章。建议遵循流行病学规律,依据宽严相济刑事政策,循证评估重大传染病患者在司法场域中的现实危险。在扩大适用非羁押、非监禁刑时,可以依申请或依职权采取电子监控手段加强监督管理,降低相关风险。

In recent years,the high incidence of criminal cases involving the spread of HIV and the new coronavirus,which was once known as a“Category B infectious disease”but treated as a“Category A disease”,has attracted great attention from all walks of life.Due to the serious risk of transmission,the special treatment and classified management are needed.In the criminal proceedings to investigate the crimes of patients with these two major infectious diseases,the front-line investigators are under great pressure,who are worried about the occurrence of large-scale infection accidents or occupational exposure.Affected by the“potential danger theory”,there are some phenomena such as“one detention in the end”and“extended non-custodial detention”in the implementation of the strict punishment policy;in the process of mitigation,there were also cases of“direct release”and“paper imprisonment”.With the amendment of the epidemic prevention policy,especially the change of the infectious cognition of the two diseases“with measures against Class B infectious diseases”,the definition of social risk of the patients involved in the crime should also be adjusted.At present,it is necessary to systematically integrate a series of judicial interpretations with many conflicts.In the long run,it is suggested to add“special procedures for criminal cases involving major infectious diseases”in the fifth part of the Criminal Procedure Law.Specifically,in Part 5“Special Procedures”of the Criminal Procedure Law,a sixth chapter“Procedures for Criminal Cases involving Major infectious Diseases”was added,following the example of“Procedures for Criminal Cases involving Minors”,and more than 10 specialized provisions were formulated,focusing on public health incidents that may occur again and compulsory measures,evidence collection,trial procedures,and execution of patients involved in crimes.In the choice of the recent legislative mode,the specialized judicial interpretation theory“can be the basic scheme.Most of the provisions of the opinions on the Prevention and Control of the new coronavirus epidemic have been significantly adjusted by the Notice,which should be repealed in a timely manner.Based on epidemiological laws,especially considering the consistency of litigation capacity and external environmental impact,procedural regulation can be carried out in the subject dimension of patients with major infectious diseases involving crimes:aiming at type,systematization and chain,combined with guiding cases in recent years,judicial interpretations related to major infectious diseases such as Severe Acute Respiratory Syndrome Coronavirus,AIDS and the new coronavirus can be systematically integrated.It is particularly necessary to point out that,based on the scientific understanding of major infectious diseases such as AIDS,it is proposed to set up a special social risk identification clause for this group in the Criminal Procedure Law:Criminal suspects and defendants,infected with major infectious diseases,can be granted bail pending trial when they take the trial without the risk of transmission after treatment.For those who meet the conditions for arrest,residential surveillance may be applied;for those who have no fixed residence,a residence convenient for medical treatment may be designated based on clinical symptoms.The criminal suspects and defendants of major infectious diseases in custody shall be subject to classified management.For patients with serious infectious diseases involved in crimes,in the application of non-custodial measures such as bail pending trial,residential surveillance and community correction,they can apply,or the public security and judicial organs can order them to wear an electronic anklet or bracelet according to the social risk assessment in order to reduce the risk of disease transmission,recidivism,etc.In this regard,the basic information of cases and patients can be imported in the relevant platform,and data association”can be carried out to urge them to fulfill their legal obligations.