1. Introduction
During the New Coronary Pneumonia epidemic, people from all over the country were fighting against the epidemic, but from time to time there were some incredible cases. Malicious spitting at public elevator buttons is one of them. At the same time, netizens feel disgusting and fearful, and they all said, You are ugly when you spit. Coincidentally, spitting incidents have also occurred in Thailand, Malaysia, Belgium and other countries. Deliberately spitting at the elevator buttons and other parts is not only outrageous on the moral level, but also may involve illegal or even suspected crimes. Many netizens advocate that spitting should be treated as crimes. However, the criminal law is the last line of defense. Apart from anger, the case should be fully grasped. The comprehensive diagnosis of the perpetrator and subjective knowledge should be used to determine whether it constitutes a crime, and it should be rejected across the board.
In order to punish the violation of the new coronavirus infection pneumonia epidemic according to law, prevent and control illegal crimes, on February 10, 2020, 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 Prevention and Control of Illegal Crimes, Opinions clearly stipulate that the intentional transmission of new coronavirus infection pneumonia pathogens, one of the following circumstances, endangers public safety, in accordance with the provisions of Article 114, Article 115, paragraph 1, of the Criminal Law, in order to Dangerous method of endangering public safety crime conviction and punishment: 1. Patients who have been diagnosed with new coronavirus infection pneumonia, pathogen carriers, refuse to be isolated for treatment or leave the isolation treatment without authorization, and enter public places or public transportation; 2. Patients with suspected pneumonia with new coronavirus infection refuse to be isolated for treatment or leave the isolation without authorization, and enter public places or public transportation, causing the spread of new coronavirus. Based on this, the most qualitative voice for the elevator spitting behavior is the crime of endangering public safety by dangerous methods. In addition, the behavior may also violate the crime of provocation and nuisance in the criminal law, and the crime of preventing the prevention of infectious diseases.
2. Treat the case of spitting rationally
Article 114 of the Criminal Law stipulates that fires, water drains, explosions, the release of poisonous, radioactive, infectious disease pathogens and other substances or other dangerous methods that endanger public safety and have not yet caused serious consequences shall be punishable by imprisonment of not less than 3 years but not more than 10 years. Article 115 stipulates that fires, water drains, explosions, the release of poisonous, radioactive, infectious disease pathogens or other substances or other dangerous methods that cause serious injuries, deaths or major losses of public and private property shall be punished with imprisonment of more than 10 years and life Imprisonment or death penalty. The person who commits the crime of the preceding paragraph by negligence shall be sentenced to fixed-term imprisonment of more than 3 years but less than 7 years; if the circumstances are less serious, he shall be sentenced to fixed-term imprisonment of less than 3 years or detention. It can be seen that the crime of endangering public safety by dangerous methods is a felony. Based on the requirements of the statutory principle of crime and punishment, as well as the interpretation and systematic interpretation of the legal provisions, the other dangerous methods of crimes of endangering public safety by dangerous methods should be similar. Explain that “other dangerous methods” should be identical to the nature of fire, water leak, explosion, and the release of hazardous substances, which is equivalent to their risk, not just based on whether the behavior is dangerous to public safety, so as to prevent excessive application. expansion.
According to the different situations of the subjective and objective aspects of the perpetrator, whether the spitting case constitutes a crime of endangering public safety by dangerous methods should be divided into the following three specific situations for discussion:
(1) If the perpetrator knows that he is a patient or carrier of the new coronary pneumonia, then the subjective intention is intentional, which is divided into direct intention and indirect intention. Since this epidemic generally has obvious onset characteristics, the subjective intentional determination of the perpetrators can be comprehensively judged based on whether they have been exposed to the epidemic location, whether there is a medical record, obvious symptoms, and related behavioral activities. Elevator buttons are the parts that can be touched with high probability. Once the residents in the same community come into contact with saliva and touch the nose, nose and eyes without washing their hands, they are easily infected. At this time, the risk of infection may expand at any time. In this case, the act presents an urgent risk of infringing upon the life and health interests of the unspecified or majority of people, without the need for actual damage such as death or serious injury, which may constitute a crime of endangering public safety by dangerous methods.
(2) The perpetrator did not know that he was a new coronary pneumonia patient or a virus carrier. He was only diagnosed or identified as a virus carrier after the case occurred. During the case, he spit out for reasons such as venting his emotions. During the special period of the epidemic, everyone has the risk of infection. The actor should be able to foresee that the behavior of spitting at the public elevator button may cause unspecified or most people to be infected, but he believes that he must not be a new coronary pneumonia patient or virus carrier. The failure to foresee the fault of overconfidence may constitute a crime of negligently endangering public safety. It is worth noting that the crime is the result of the crime, and it must be the actual consequence of serious injury, death, or major losses of public and private property to constitute a crime.
(3) The perpetrator is not a new coronary pneumonia patient or a virus carrier from beginning to end. Whether it is revenge for society because it thinks it is infected or simply for emotional venting, there is actually no specific risk required by dangerous methods to endanger public safety, and it is not true. The crime. However, there are differences in the treatment results of this situation in practice:
【Case 1】
On February 4, a surveillance video in the elevator of a community in Heng County, Guangxi Zhuang Autonomous Region caught the attention of netizens. In the video, an adult man used saliva to soil the disposable paper towels used for epidemic prevention and smeared the elevator buttons. After receiving the report, the local public security bureau found that the man was drunk at the time of the incident and was not a suspected or confirmed patient with new coronary pneumonia. It is understood that the man has been detained for 10 days in administrative detention by the local public security bureau, and all three of his fellow passengers have also been admonished and educated.
【Case 2】
On February 10, the Chongqing Municipal Public Security Bureau Jiangbei Branch official Weibo issued a report saying that a video of a woman deliberately spitting at the elevator button was reported on the Internet. The police quickly launched an investigation and placed Li Mou (female) in a community in Jiangbei District, Chongqing. , 48 years old). According to Li confessing that he was resentful because of disputes with others, he spit on the buttons at 9 o'clock on February 9 to vent his dissatisfaction. After investigation, Li Mou had no history of living outside the country within 14 days, did not contact people in Hubei, and his temperature was normal. Currently, Li has been criminally detained by the police.
The perpetrators of case 1 and case 2 are not patients with new coronary pneumonia or virus carriers, regardless of whether there is a deliberate intention to endanger public safety, objectively, there is no specific risk of infringement on the life or health legal interests of unspecified or most people In theory, it does not constitute a crime of endangering public safety with dangerous methods. However, the results of the two cases were quite different. The man in Case 1 was placed in administrative detention, while Li in Case 2 was detained in criminal law. The reason for the difference in results is currently unknown. Li Mou cannot be regarded as a crime of endangering public safety with dangerous methods, so does it constitute a crime of provoking trouble or crime of obstructing the prevention and treatment of infectious diseases.
The Criminal Law stipulates four objective manifestations of crimes of provocation and trouble-making: 1. Beating others at will, with bad circumstances; 2. Chase, intercepting, abusing, intimidating others, with bad circumstances; 3. Forcibly or arbitrarily destroying, occupying public or private The property is serious and the plot is serious; 4. Causing trouble in a public place and causing serious disorder in the public place. Article 11 of the Interpretation of Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases That Hamper the Prevention and Control of Emergent Infectious Disease Epidemic Situations and Others stipulates that during the prevention and control of emergencies and other disasters, forcible or arbitrary damages are required If the circumstances of occupation of public and private property are serious or cause trouble in public places, causing serious disorder in public places, in accordance with the provisions of Article 293 of the Criminal Law, be convicted of the crime of provocation and cause punishment according to law. For a long time, the crime of provocation and nuisance in judicial practice has been the crime of destroying the order of social management. The pocketing in judicial application has been criticized by many scholars. The reason is mainly determined by the nature of the constituent elements of the crime of provocation and nuisance. . The behavior of provoking trouble is inherently abstract. The four situations listed in the elements of the crime of provoking trouble cause especially causing trouble in public places and causing serious chaos in public places. It also increases the ambiguity of behavior determination. Although severe punishment is an important means of epidemic prevention and control during the special period of the epidemic, it is also not possible to break through the bottom line of the rule of law and make judgments that do not meet the national prediction possibilities. The legal interest in the protection against provocations is normal social order. Apart from the controversial question of whether Li’s behavior is “causing troubles”, according to the information provided by the current police report in this case, there has not been a serious disorder in public places caused by Li. Based on the evidence, this article believes that Li’s behavior simply caused psychological panic and anxiety for users in the same community, and did not affect the actual social order. It does not meet the fourth manifestation of the constituent elements and does not constitute a crime of provocation.
On the other hand, the crime of obstructing the prevention and treatment of infectious diseases requires that the subject violates the provisions of the Law on the Prevention and Control of Infectious Diseases and implements one of the four statutory acts, causing serious transmission or transmission of Class A infectious diseases. 1. Control measures for infectious diseases, but Li’s behavior does not have the result or serious risk of infectious disease transmission, and does not constitute a crime against the prevention and treatment of infectious diseases. Considering the particularity of the epidemic situation, the Law on Public Security Management Penalties can regulate Li's behavior and give administrative detention, fines and other administrative penalties.
3. Conclusion
During the epidemic, the evil of human nature and the uneven quality were found, and there were no shortage of people who drilled legal loopholes and committed illegal acts and crimes, which was in sharp contrast with medical workers and other rebels. For cases such as elevator spitting, one can understand the anger of the people and the dissatisfaction with the criminal law. But as teacher Luo Xiang said, The law must respect public opinion, but it must exceed the prejudice of public opinion. Public opinion should be viewed dialectically. The law, especially the criminal law, should not excessively cater to the public's demand for severe criminalism, but should use what is contained in the law. Spirit and values guide the public's values and resolve the prejudices and irrational elements. The development of epidemic prevention in accordance with the law requires that while giving full play to the function of criminal deterrence, it should also be alert to the one size fits all phenomenon, comprehensively grasp the specific circumstances of each case, deal with the distinction between crime and non-crime, and the crime and other crimes, and always maintain The modesty of criminal law.