On the occasion of the New Year in 2020, a sudden pneumonia epidemic is coming, the virus is spreading widely, and the infection is fast, which worries the whole people. In the current epidemic, no one resigns. The law is a powerful guarantee for epidemic prevention and control. As the last line of defense for the rule of law, criminal law must undoubtedly intervene in such sudden public events. During the epidemic prevention and control period, there are numerous cases of punishment for crimes against the public safety by dangerous methods in violation of the regulations during the epidemic. However, this crime is applied as a bottom-line crime so frequently in special periods, whether there is an inappropriate expansion .

For acts that intentionally cause virus transmission during the epidemic, Articles 114 and 115 of the Criminal Law stipulate the crime of endangering public safety by dangerous methods. During the critical period of epidemic prevention and control, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice issued the “Opinions on Punishing and Preventing Crimes that Prevent and Control Pneumonia by Infecting New Coronavirus,” the “Opinions” clearly stated that the new Coronaviruses that infect pneumonia pathogens and endanger public safety shall be convicted and punished in accordance with the provisions of Articles 114 and 115 of the Criminal Law for the crime of endangering public safety by dangerous methods, and two specific situations shall be stipulated.

According to the Opinions, for the purpose of intentionally spreading new coronavirus infections with pneumonia pathogens, to establish a crime of endangering public safety by dangerous methods, the following three conditions must be met: First, the subject is limited to newly diagnosed patients with new coronary pneumonia and pathogens. Or suspected patients with new coronary pneumonia; second, subjective intentional transmission of the pathogen of new coronary pneumonia; third, objectively manifested as refusal of isolation treatment or unauthorized separation from isolation treatment before the isolation period, and the act of entering a public place or public transportation was carried out Among them, suspected patients with new coronary pneumonia also requested the consequences of the spread of new coronavirus. Judging from judicial practice, during the epidemic, the crime of endangering public safety with dangerous methods was frequently applied.

Case 1: The Shenzhen police reported that Fan Moufang, 64, who concealed the epidemic's itinerary and fever, did not take protective measures when taking a vehicle, was later diagnosed with new coronary pneumonia, and was found guilty of endangering public safety by dangerous methods. Case investigation. Case 2: The Weifang police in Shandong reported that Zhang Moufang, a citizen who had been to Bengbu City, Anhui Province from January 17-20, had dinner with others on the way back to Weifang, and concealed his travel history and personnel contact history after returning to Weifang. He was diagnosed with new coronary pneumonia on February 2. At present, he is taking relevant measures for the crime of endangering public safety with dangerous methods.

In the above two cases, the perpetrator did conceal the itinerary and illness, and entered and exited a public place, but even during the epidemic period, such behaviors must not be considered one size fits all as being related to arson, flooding, explosion, and release Poisonous, radioactive, infectious disease pathogens and other substances that are quite harmful to public safety should be comprehensively considered and determined in combination with subjective intention and objective reality.

1. Intentional crime must know the social significance of its own behavior

Criminal law evaluates the perpetrator's social behavior rather than natural behavior. Intentional crime requires that the perpetrator must know the social significance of his actions and the possible social consequences. For the determination of the crime of endangering public safety by dangerous methods during the epidemic, it is not the concealment of whether the act itself is a crime, but the social significance of concealing the condition of returning his illness to a public place. According to the two situations stipulated in the Opinions on the Punishment of the Prevention and Control of Violation of Pneumonia Infected with New Coronavirus According to Law, the perpetrator should still refuse to be quarantined after being diagnosed as a new case or suspected case, and deliberately go to the public A place that is sufficient to cause the spread of disease can be regarded as a deliberate crime of endangering public safety by dangerous methods.

In the aforementioned two cases, the perpetrators were only taken to conceal the itinerary and the corresponding symptoms, and were subsequently diagnosed as new coronary pneumonia, and they were taken dangerous crimes against public safety. The act of entering a public place occurs before being diagnosed. Even if there are symptoms during this period, it is not possible to conclude with high probability that the perpetrator may suffer from new coronary pneumonia. Therefore, it is debatable whether its subjective form should be directly regarded as deliberate. The crime of dangerous methods endangering public safety is undoubtedly the improper application of this crime. Of course, we cannot directly rule out the possibility of the indirect intentional or even direct intentional of the actor, but in practice, we should strictly determine the objective reality, for example: whether the actor refuses to see a doctor, whether he deliberately frequents public places, and whether he has participated in the competition. In the past, more public activities were used for identification, and the intention of concealing the perpetrator’s condition and violating the relevant protection regulations could not be directly identified as the intention of endangering public safety by dangerous methods.

2. Strictly identify endangering public safety

Whether the behavior of the perpetrator endangers public safety or the possibility of endangering public safety should be strictly determined. Due to the particularity of the epidemic situation, the identification of public safety should not be determined solely by the nature of the place, but can be combined with the behavior of the perpetrator and the number of people directly or indirectly contacted. First of all, those who are diagnosed or suspected of having patients in public places such as supermarkets and public transportation can be deemed to have endangered public safety. If they are in relatively empty places with few personnel, they will not cause a large spread. It may not be deemed as endangering public safety as appropriate; Secondly, the behavior of the actor should be concerned, for example: even in a closed and unmanned elevator, spitting at the elevator button or contaminating disposable appliances should be deemed to endanger the public Safety, and if adequate protective measures are taken to stay briefly on certain occasions and avoid contact with others as much as possible, it should not be deemed to endanger public safety.

Taking the behavior of Zhang Moufang in the aforementioned case two as an example, can she be deemed to endanger public safety when she has dinner with others on the way back? If Zhang Moufang only conducts small-scale dinners in a relatively closed place, it should not be deemed to endanger public safety. In this regard, comprehensive identification should be made based on the place where the meal is held, the scale of the meal, the number of people, etc. On the contrary, taking the case of Jiang Moumou as an example: On January 21, Jiang Mou drived to a shopping mall in Wuhan, Hubei Province to buy photographic equipment. On January 26, Jiang Moumou appeared coughing and other new coronavirus infection pneumonia suspected symptoms and went to the hospital for treatment. After returning home, Jiang Moumou had dinner with unspecified persons in multiple places, participated in gambling, used vehicle customer. Jiang knew that he had a high possibility of infection and had already seen a doctor. He still carried out activities with unspecified personnel on multiple occasions on many occasions. There was a great possibility of spreading the virus, and it should be considered as endangering public safety.

3. Appropriate use of other crimes

The crime of endangering public safety with dangerous methods is a serious crime in the criminal law, and it is a felony with a maximum death penalty. Although the felony does have a good deterrent effect in a special period, the statutory crime is still the most basic principle of the criminal law And the bottom line, in the critical period of epidemic prevention and control, other crimes should be properly applied, not only to consider the crime and non-crime, but also to pay attention to the division of this crime and other crimes.

If the perpetrator only violates the epidemic prevention regulations, conceals the false report but does not frequently enter or leave the public place, or does not comply with the relevant regulations, which greatly increases the difficulty of epidemic management, it may constitute an infectious disease according to the provisions of Article 330 of the Criminal Law Prevention and control of crimes; if the subjective consequences of the harm are negligent, it can be deemed as negligent or not guilty of endangering public safety in a dangerous way; as for the perpetrator spitting at others in public places and tearing his population cover, if it is true If there is no intention to spread the virus and there is no infectious consequence that may cause actual harm, it may be deemed as a crime of provocation and nuisance according to Article 293 of the Criminal Law; The measures taken for epidemic prevention, quarantine, compulsory isolation, isolation treatment, etc. may be convicted and punished according to the provisions of Article 277 of the Criminal Law for the crime of obstructing official duties.

In the special period of epidemic prevention and control, criminal law has an indispensable role as the last line of defense of the rule of law. However, epidemic prevention and control is a national war, and the intervention of criminal law must have its rationality and legitimacy. For various social events caused by the epidemic, the principle of civil and administrative precedence should be adhered to, and the criminal law should be used as the last resort. Here, we not only need to reflect on the expansion of the crime of endangering public safety with dangerous methods, but also avoid the expansion of criminal means. It is necessary to make a good distinction between this crime and other crimes.