Introduction

On March 16, 2020, the World Health Organization (WHO) stated that the cumulative number of confirmed cases of new coronary pneumonia outside China has exceeded the cumulative number of confirmed cases in China. At this point, the global prevention and treatment of the New Coronary Pneumonia epidemic has shown a new trend: on the one hand, the epidemic situation in China tends to improve, and various regions have actively resumed production and the epidemic warfare has entered the closing stage; on the other hand, the epidemic situation outside China has rapidly spread and infected many countries. The number of people soared and became the epicenter of the new coronary pneumonia epidemic. Foreign defense imports have become the top priority of the current epidemic prevention and control in my country.

In response to the severe reality of the increased risk of the spread of the new coronary pneumonia epidemic through the port, on March 16, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of Justice, and the General Administration of Customs jointly issued the On Further Strengthening the Frontier Health and Quarantine Work According to Law The Opinions on Punishing Violations and Crimes that Impede Frontier Health and Quarantine (hereinafter referred to as Opinions) require serious punishment for the 6 types of actions that impede frontier health and quarantine, such as concealing the epidemic situation, and provide strong legal guarantees for maintaining public health security.

The Opinions pointed out that it is necessary to strengthen the administrative enforcement of frontier health and quarantine. For violations of the Frontier Health and Quarantine Law and its implementation rules that do not yet constitute a crime, administrative penalties shall be given according to law.

The Opinions emphasize that it is necessary to punish crimes that impede frontier health and quarantine according to law. For refusal to implement health quarantine treatment measures, concealment of epidemic situation forgery plots and other acts that hinder frontier health quarantine, they can be convicted and punished with the crime of obstructing frontier health quarantine in accordance with the provisions of Article 332 of the Criminal Law.

The Opinions make it clear that the connection between administrative law enforcement and criminal justice should be well done. Cases that meet the standards for prosecution of criminal cases in the field of frontier health and quarantine supervision must be processed in accordance with relevant regulations in a timely manner and transferred to public security organs, and administrative penalties must not replace criminal penalties.

The Opinions require that the punishment should be equal, strictly implement fair and civilized law enforcement, and focus on grasping the policy of leniency and strictness; to maintain fairness and justice, the judiciary must guarantee the lawsuit rights of the criminal suspects and defendants, especially the right of defense, in accordance with the law. Safeguard the legitimate rights and interests of the parties and the correct implementation of the law.

The promulgation of the Opinions set the guidelines for the frontier health and quarantine work during the period of the New Coronary Pneumonia epidemic. On the one hand, by clarifying the scope of application and the target of regulation, the crime mentioned in Article 332 of the Criminal Law is activated in time to form a shield for public health; on the other hand, it emphasizes the regulation of quarantine law enforcement and the protection of legal rights To maintain the correct implementation of the law, it can be said that the dual functions of criminal law social governance and human rights protection are fully utilized.

2. Linking executions that hinder frontier health and quarantine

(1) Administrative penalties for violations of the Border Health and Quarantine Law

Frontier health quarantine, as the last checkpoint to prevent the spread of infectious diseases, plays an important role in ensuring the safety of people's lives and health, maintaining public health safety and social stability and order. According to the Frontier Health and Quarantine Law and its implementation rules, if a unit or individual has the following 11 types of violations of the frontier health and quarantine regulations, the frontier health and quarantine agency may give a warning or fine according to the severity of the circumstances:

 Ships that should be subject to entry quarantine do not hoist quarantine signals;

Vehicles entering or leaving the country, before and after entry quarantine or after exit quarantine, arbitrarily get on and off personnel, load and unload luggage, goods, parcels and other items;

Refuse to accept quarantine or resist sanitary supervision, refuse to accept sanitary treatment;

Forging or altering the quarantine certificate or certificate and failing to declare the epidemic situation truthfully;

Concealing the carrying of prohibited microorganisms, human tissues, biological products, blood and its products or other animals and articles that may cause the spread of infectious diseases;

Entry and exit vehicles that have not been quarantined leave the quarantine site without permission and evade inspection;

Conceal the epidemic situation or forge the plot;

Without sanitary treatment by the health and quarantine organ, unauthorized discharge of ballast water, removal of garbage, dirt and other controlled items;

Unauthorized removal of corpses and bones without sanitary treatment by the health and quarantine authority;

Waste items and waste vehicles that have not been declared to the health and quarantine authority, and have been entered, exited, or used or dismantled without the sanitation and quarantine certificate issued by the health and quarantine authority;

Without the inspection of the health and quarantine agency, the patients with infectious diseases are removed from the vehicle, causing the transmission of infectious diseases

Depending on the behavior of the unit or individual, those who have the first to fifth items listed above shall be punished with a warning or a fine of not less than 100 yuan but not more than 5,000 yuan; those who have the above listed items 6 to 9 shall be subject to more than 1,000 yuan. A fine of less than 10,000 yuan; those who commit the items 10 and 11 listed above shall be fined more than 5,000 yuan but less than 30,000 yuan.

(2) Criminal Penalty for Violation of the Frontier Health and Quarantine Law

Article 22 of the Frontier Health and Quarantine Law stipulates criminal penalties for violations of this law: If a violation of this law causes the spread of quarantine infectious diseases or there is a serious risk of the spread of quarantine infectious diseases, criminal liability shall be investigated in accordance with the relevant provisions of the Criminal Law. Among them, quarantine infectious diseases refer to plague, cholera, yellow fever and other infectious diseases determined and announced by the State Council.

The crime of obstructing frontier health and quarantine in Article 332 of the Criminal Law is the confirmation of the above criminal punishment: If a person violates the frontier health and quarantine regulations and causes the spread of quarantine infectious diseases or there is a serious risk of spreading, he shall be sentenced to fixed-term imprisonment of not more than three years or detention Or a single fine. If the unit commits the crime of the preceding paragraph, the unit shall be fined, and the person in charge and other persons directly responsible shall be punished in accordance with the provisions of the preceding paragraph.

On January 20, 2020, with the approval of the State Council, the National Health and Health Commission included new coronary pneumonia in the management of quarantine and infectious diseases as stipulated in the National Frontier Health and Quarantine Law. This means that units or individuals who violate the provisions of the Border Health and Quarantine Law and cause the spread of new coronary pneumonia or have a serious risk of causing the spread of new coronary pneumonia will be investigated for criminal responsibility. The Opinions also make this clear.

Coincidentally, the Ministry of Health also included Influenza A H1N1 influenza in the management of quarantine and infectious diseases as stipulated in the National Frontier Health and Quarantine Law in 2009. In fact, from the 1957 National Border Health and Quarantine Regulations, the six infectious diseases of plague, cholera, yellow fever, smallpox, typhus and relapsing fever were identified as quarantine infectious diseases to the current National Frontier Health and Quarantine Law only keeping plague, Cholera and yellow fever are legal quarantine infectious diseases. It can be seen that the scope of quarantine infectious diseases is not static, but needs to be adjusted accordingly with the scientific understanding of the virus itself and the prevention and control of the actual epidemic situation.

3. Understanding and applying the crime of obstructing frontier health and quarantine

(1) Objective violations of the crime of obstructing frontier health and quarantine

This crime is a legal offender, and its understanding needs to be supplemented and explained on the basis of the predecessor law. As mentioned earlier, the Frontier Health and Quarantine Law and its implementation rules clearly stipulate the actions that should be subject to administrative punishment, and these actions define the punishment boundary for the crime of obstructing frontier health and quarantine. In other words, if the behavior does not belong to the punishable behavior stipulated in the Frontier Health and Quarantine Law and the implementation rules, it does not meet the requirements of violating the frontier health and quarantine regulations. Without the illegality of the behavior, it cannot be prosecuted accordingly. Criminal liability.

On the one hand, not all violations of the Border Health and Quarantine Law need to be punished by criminal law. The types of wrongfulness in administrative law may not completely coincide with the corresponding types of criminal wrongfulness. Although criminal law takes the protection of legal interests as its own responsibility, it does not protect all legal interests. Under the modern rule of law that advocates the protection of human rights and emphasizes the restriction of state power, the criminal model of administrative offenders must emphasize the modesty of criminal law, which is the position that a modern rule of law country should have.

On the other hand, the statutory principle of crime and punishment requires that crime and punishment should be as clear as possible and regulated in the law in the formal sense. Although the use of blank charges in the criminal law sub-rule does not violate the statutory principle of criminal punishment, it is undoubtedly more clear that the composition of the crime will help the judicial organ to accurately understand and strictly apply the criminal law.

In this regard, the Opinions stipulates that violations of the border health and quarantine regulations and any of the following acts are considered to impede border health and quarantine:

Persons infected with quarantine infectious diseases or persons suspected of being infected with quarantine refuse to implement health quarantine measures such as health declarations, body temperature monitoring, medical patrols, epidemiological investigations, medical investigations, sampling and other health quarantine measures proposed by the customs in accordance with the laws and regulations of the Frontier Health and Quarantine Law, or Hygiene treatment measures such as isolation, retention, on-site diagnosis and referral;

Persons infected with quarantine infectious diseases or persons suspected of epidemic disease conceal the epidemic situation by falsely filling in the health declaration card, or forge the plot by altering the quarantine form or certificate;

Those who know or should know that special items such as microorganisms, human tissues, biological products, blood and their products that are subject to approval management may cause the spread of quarantine and infectious diseases, and they still evade quarantine without approval and are transported or sent out of the country;

Persons in charge of quarantine infectious diseases or suspects are found on the entry-exit vehicles, and the person in charge of the vehicle refuses to undergo sanitation or quarantine;

Persons with non-accidental deaths and unknown causes of death appearing on entry-exit vehicles from countries and regions where quarantine and infectious diseases are endemic, the person in charge of vehicles intentionally conceals the situation;

Others refuse to implement the quarantine measures proposed by the customs in accordance with the laws and regulations of the border health and quarantine law.

If one of the above-mentioned six acts is carried out, causing the spread of plague, cholera, yellow fever and new coronary pneumonia and other quarantine infectious diseases determined and promulgated by the State Council, or there is a serious risk of spreading, in accordance with the provisions of Article 332 of the Criminal Law, to hinder the border health quarantine Conviction and punishment.

This crime is a real offender and a dangerous offender. Actions that impede frontier health and quarantine also require actual damage to the spread of quarantine infectious diseases or a serious risk of the spread of quarantine infectious diseases in order to meet the requirements of this crime. It is generally believed that there is a serious risk of quarantine infectious disease transmission is a specific risk and requires a judge to make specific judgments based on the case. Only when there is a high degree of probability between the behavior and the occurrence of dangerous results can this kind of danger be established. Therefore, only the above acts that impede frontier health quarantine, but do not cause the spread of quarantine infectious diseases or have a serious risk of transmission, do not constitute a frontier health quarantine crime, which is a general administrative violation of the frontier health quarantine regulations.

This crime punishes the unit for committing a crime, which is confirmed in the Opinions: the unit conducts activities that impede frontier health and quarantine, causing the spread of plague, cholera, yellow fever, new coronary pneumonia and other quarantine infectious diseases determined and announced by the State Council or there is a serious risk of spread The unit shall be fined, and the person directly in charge and other persons directly responsible shall be convicted and punished.

At the same time, the Opinions also emphasized the obligation of special subjects to actively cooperate with the border health and quarantine work. Including quarantinable infectious disease infected persons, suspected infected persons, carriers or postmen of special items, and persons in charge of transportation. Among them, according to Article 2 of the Implementation Rules of the Frontier Health and Quarantine Law, the quarantine infectious disease infected person refers to the person who is suffering from quarantine infectious disease, or after preliminary diagnosis by the health and quarantine agency, it is believed that they have been infected with quarantine infectious disease or are already in quarantine infection Persons in the incubation period of disease; suspected infectious persons are those who have been in contact with the environment of quarantine infectious diseases and may transmit quarantinable infectious diseases; persons in charge of transportation means persons in charge of ships, aircraft, trains and other vehicles.

(2) Subjective responsibility of the crime of obstructing frontier health and quarantine

This crime is a negligence. In terms of acts that impede frontier health and quarantine, the subject of the act may be subjectively intentional or negligent, but the harmful results or serious dangers of the spread of quarantine infectious diseases can only be negligent. If the actor has intentional intention to cause a hazardous result or a serious danger, it constitutes a crime of endangering public safety in a dangerous way. If you have been diagnosed as a new coronavirus-infected pneumonia patient, pathogen carrier, or suspected patient according to medical standards before entry, you will refuse the sanitary quarantine and treatment measures of the customs after entry, without any protective treatment, and enter the public place or public transportation without authorization If the public safety is endangered, according to the Opinions on the Punishment of Prevention and Control of Crimes against Pneumonia Caused by New Coronavirus Infection, the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Justice should use dangerous methods to endanger public safety Conviction and punishment. (3) Related crimes that impede frontier health and quarantine

The crime of obstructing frontier health and quarantine and the crime of obstructing the prevention and treatment of infectious diseases

Article 330 of the Criminal Law stipulates the crime of obstructing the prevention and treatment of infectious diseases, and the crime of obstructing frontier health and quarantine is similar to it. First, both crimes are crimes related to the prevention and treatment of infectious diseases, and there is overlap in the protection of legal interests. Both are to prevent the spread of specific infectious diseases, maintain public health management order, and protect the health and safety of people. Second, both crimes are statutory crimes, and illegality is based on violations of specific administrative regulations. Thirdly, both crimes are actual offenders and dangerous offenders, and the behavior must cause the spread of a specific infectious disease or have a serious risk of spreading. Fourth, both crimes are negligent. Actors can intentionally violate administrative regulations, but can only have negligence for actual harm and dangerous results. Fifth, both crimes punish unit crimes.

But the difference between the two crimes is also obvious, specifically:

First, the constitutional requirements of the two crimes are different. To comply with the requirements of the crime of obstructing the prevention and treatment of infectious diseases, the subject must violate the provisions of the Law on the Prevention and Control of Infectious Diseases and implement one of the four statutory acts that impede the prevention and treatment of infectious diseases, causing the spread or serious risk of the transmission of Class A infectious diseases; The constitutional elements of frontier health and quarantine crimes. The subject must violate the frontier health and quarantine regulations, causing the spread of quarantine infectious diseases or the serious risk of spreading.

Secondly, there are differences in the subjects of the two crimes. The main body of conduct that interferes with the prevention and treatment of infectious diseases is all the units and individuals that implement the prescribed four kinds of behaviors, which cause the spread of Class A infectious diseases or have a serious risk of spreading. Subjects that impede frontier health and quarantine crimes are passengers entering and exiting the country, employees and persons in charge of entry and exit vehicles, relevant units at border ports or their directly responsible persons in charge or directly responsible persons, and persons in charge of vehicles at border ports, etc. Natural persons or units entering or leaving the country.

Finally, the scope of infectious diseases regulated by the two crimes is different. The scope of infectious diseases that impede the regulation of infectious disease prevention and control crimes is Type A infectious diseases, including plague, cholera, and infectious diseases that take preventive and control measures for Type A infectious diseases in accordance with the Law on the Prevention and Control of Infectious Diseases. The scope of infectious diseases that impede the regulation of frontier health and quarantine crimes is quarantine and infectious diseases, including plague, cholera, yellow fever, and infectious diseases that are included in the management of quarantine and infectious diseases as stipulated in the Frontier Health and Quarantine Law.

Crime of obstructing frontier health and quarantine and crime of negligently endangering public safety

As mentioned earlier, the subjective mentality of the crime of obstructing frontier health and quarantine is negligence. Therefore, if the result of the transmission of quarantine infectious diseases or the serious danger of transmission is intentional, it should be regarded as a crime of endangering public safety by dangerous methods.

It is worth noting that Article 115, paragraph 2 of the Criminal Law stipulates crimes of negligence endangering public safety by dangerous methods, and the subjective mentality of this crime is also negligence. It is more appropriate to understand that although the perpetrators have only subjective faults in the spread of quarantine infectious diseases, they have objectively produced results equivalent to fire prevention, flooding, explosions, and the delivery of dangerous substances and other dangerous methods that infringe on public safety. If the punishment for frontier health and quarantine crime cannot effectively evaluate the harm of its legal benefits, it should be the crime of endangering public safety by dangerous methods by fault