From the beginning of the outbreak of New Coronary Pneumonia, the epidemic situation has been effectively controlled under the implementation of response strategies such as group defense, group control and joint control. As of March 19, Hubei's newly diagnosed, newly suspected, and existing suspected cases have been zero for two consecutive days, and the epidemic prevention and control is dawning, but during this period, the phenomenon that hinders the epidemic prevention and control is emerging: Chinese Australians return to Beijing Refusing to quarantine to go out for a run, Yemou drove off the car and refused to prevent and control the inspection and so on. So is there any reasonable basis for the criminal law to strike hard at any time during any period of refusal to cooperate to cause the spread or spread of infectious diseases? This article will proceed from the deterrence and modesty of the criminal law. In the special period of epidemic prevention and control, the scale of law enforcement should be adapted to the degree of harm that hinders epidemic prevention and control.
Clarify crime establishment standards and strengthen criminal law warnings
The Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice jointly formulated the Opinions on Punishing and Preventing and Controlling Crimes against Pneumonia Caused by New Coronavirus Infection. The Opinions, after stipulating 9 types of 33 crimes that impede the prevention and control of the epidemic, stipulates: Those who commit relevant crimes during the prevention and control of the epidemic shall be considered as a serious case, embody strict policy requirements in accordance with the law, and effectively punish Deter crimes and crimes, safeguard legal authority, maintain social order, and safeguard the lives and health of the people.
In other words, when it comes to criminal acts that impede the prevention and control of the epidemic as stipulated in the Opinions, the people's court must take criminal offences during the epidemic as heavier punishment and impose heavier penalties on the criminals. The implementation of this provision will play an important deterrent and warning role for criminals who seriously impede the prevention and control of the epidemic and people who may have potential to impede the prevention and control.
Some people may question the rationality of the severe punishment stipulated in the Opinions. From the perspective of the objective harm of the behavior and its consequences, the new coronavirus is highly contagious and has a long incubation period. The actor refuses to cooperate with the prevention and control of the epidemic. Even the epidemic cannot be prevented and controlled in time, further spreading and spreading, and objectively has a serious social hazard; from the perspective of the subjective viciousness of the actors, in a game of chess in the country, when the epidemic is strictly guarded against the epidemic, the actors ignore their own safety and the safety of others and escape 1. Violent resistance to epidemic prevention and control inspections has a large subjective malignancy and personal danger. From this, it seems that there is sufficient basis for heavier punishment.
Judging from judicial practice, as the first premise to be considered from the serious circumstances, it is necessary to clarify what kind of crime constituted by the actor in combination with the specific situation where the actor hinders the prevention and control of the epidemic situation, and then be given appropriate penalties. [Case 1] On February 2, 2020, when Ye was driving through an epidemic quarantine point, she refused to test and blocked the monitoring point with a vehicle, which prevented the police from summoning according to law. The Chongyang County People’s Court sentenced Ye Mou to imprisonment for one year Three months. [Case 2] On February 5, 2020, Gongmou asked to enter the Dagang community where the epidemic prevention and control checkpoint was set up. After being persuaded by the duty officer, Gongmou insulted and beat the duty officer and caused 4 minor injuries. Xintai The municipal court sentenced Gong to a fixed term of two years and six months for provocation.
In the above two cases, the perpetrators violently resisted the inspection of the epidemic situation, but were eventually convicted and punished with the crimes of obstructing official business and the crime of provoking trouble. During the period of epidemic prevention and control, the staff of state organs involved in the crime of obstructing public affairs include the following categories: (1) Personnel engaged in official duties in organizations that exercise national administrative authority for epidemic prevention and control in accordance with laws and regulations (2) Personnel entrusted by the agency to perform public affairs in organizations that exercise the authority for epidemic prevention and control on behalf of state organs (3) Persons engaged in public affairs for epidemic prevention and control in state organs, although they are not included in the staffing of state organs. The community duty officer in Case 2 does not belong to the above three categories of government officials engaged in official duties. Therefore, the violent resistance against them should not constitute a crime of obstructing official duties, but should constitute a crime of provocation.
For the general concern of the public, especially the most basic and core demands for life, health and safety at the level of human needs, the criminal law norms must respond to concerns, so that the criminal law “is no longer a declaration and program for the political and legal classes to exert political ideals. It is a mapping and portrayal of the grassroots life of all living beings.” Although China’s criminal law has detailed and sufficient provisions on the crimes of obstructing public affairs and endangering public safety by dangerous methods, the release of the Opinions closely integrates the prevention and control of epidemic situations. The specific situation clearly stipulates what kind of crimes should be constituted by the acts that hinder the prevention and control of the epidemic, clarify the boundary between this crime and the other crimes, crack down severely, and be targeted. It can effectively give full play to the standardization and warning function of the criminal law, so that The public has a clearer understanding of what punishment will be imposed on behaviors that impede the prevention and control of the epidemic, and people can better restrain their behaviors accordingly.
Clarify power boundaries at all levels and use criminal law carefully
The modesty of criminal law requires that even if the behavior infringes or threatens the legitimate rights and interests of others, other means of social control can be dealt with preferentially by applying other means of social control instead of immediately issuing harsh penalties. Penalties can be launched only when other social control measures are inadequate. The criminal law is ex-post and complementary. If the refusal to cooperate with the epidemic prevention and control does not constitute a crime, the public security organ may disturb the order of public places and seek provocations in accordance with the Law on Public Security Administration and Punishment, refuse to implement the decisions and orders under the state of emergency, hinder the performance of duties, and rush into the police belts Districts, beating others, and other regulations shall be punished by public security administration, or other administrative punishments shall be imposed by the relevant departments.
As mentioned in the beginning, the Australian Chinese Liang went out to run during isolation, and the Beijing Municipal Public Security Bureau's Exit and Entry Administration decided to cancel Liang's work residence permit according to law in accordance with Article 67 of the Law of the People's Republic of China on Exit and Entry Administration. 1. Departure within a limited time. Liang was not a confirmed patient or suspected patient of New Coronary Pneumonia who refused to cooperate in isolation. The perpetrator did not constitute a crime of endangering public safety in a dangerous way. In this case, the public security organ fully used administrative punishment to punish the perpetrator.
There is no conflict between the preferential application of the predecessor law and the severe punishment in special periods, and the strengthening of the warning function of the criminal law. The former emphasizes the flexible use of a variety of means to control behaviors that hinder the prevention and control of the epidemic, and the use of criminal law, while the latter emphasizes the importance of special personal and social hazards during the epidemic when other methods are invalid and the criminal law supplements are applied. The plot is considered and the deterrent effect of criminal law is exerted.
If there is no evidence that the exercise of private rights harms the public interest of the society or the interests of others, it cannot be forced to intervene and intervene on the pretext of public interest. During the epidemic prevention and control period, closed management was implemented in multiple districts, and key areas of urbanized highways were restricted. While the prevention and control measures were effective, we must be alert to the occurrence of acts of prevention and control of personnel expansion and violation of citizens’ private rights. A family of three from Xiaogan, Hubei, played mahjong at home and were slapped and slapped by the staff; Puyang villagers were tied to the wall for not wearing masks; villagers set up cards to intercept hard core road closures without authorization.
The chaos in the prevention and control of various epidemics is basically the lack of the code of conduct for the prevention and control personnel, which has led individual prevention and control personnel to use their power to stand up and violate their legal rights and interests across the border. Therefore, the grassroots prevention and control work should also be brought into the orbit of the rule of law, and a more clear action guide and detailed operating procedures for the grassroots epidemic prevention work should be issued to delineate the boundaries of power in accordance with the law, guarantee and respect the rights of citizens in accordance with the law, and Prevention and control of prescribed behaviors establish clear disciplinary measures. Keep the boundaries of power and rights, so that the epidemic's line of defense breaks through the bottom line of the rule of law.
The law, the end of governance. Although the period of war and epidemic is special, all prevention and control actions must be based on the rule of law. General Secretary Xi Jinping presided over the convening of the third meeting of the Central Committee for the Comprehensive Management of the Country by Law. At present, epidemic prevention and control is at a critical period, and scientific and orderly prevention and control according to law is of the utmost importance. The more we must adhere to the prevention and control according to law, coordinate and advance all prevention and control work on the rule of law, and ensure the smooth progress of epidemic prevention and control. The key to prevent epidemic according to law is to put grass-roots epidemic prevention and control on the track of the rule of law, and use a variety of methods to control and hinder the epidemic. For the prevention and control, the pre-applicable laws are given priority, and vigilance against power expansion violates private rights, so as to gather people's hearts and win understanding and support. At the same time, the criminal law is fully used as a deterrent role as a code of conduct to ensure the smooth progress of epidemic prevention and control.