A sudden epidemic situation, let us witness the life of all kinds of life. We saw the medical staff of the most beautiful retrogrades rushing to the front line to fight the epidemic; we saw the supplies across the mountains and rivers to Hubei; the construction workers who raced against the epidemic to build the Thunderfire God Mountain hospital... We were also moved It was discovered that a small number of people not only did not lend a helping hand, but instead robbed on fire during the epidemic, and committed illegal and criminal acts, disrupting the orderly development of the national epidemic prevention work. In order to severely crack down on epidemic-related crimes, 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 and Controlling Violations of Pneumonia that Infects New Coronaviruses” on February 6, 2020 ( (Hereinafter referred to as the Opinions), which clearly states that resolutely take epidemic prevention and control as the overriding top priority, make good use of legal provisions, and promptly and severely punish all kinds of crimes that hinder epidemic prevention and control in accordance with the law. Resolutely win the epidemic prevention, control and blocking war to provide strong legal protection. For the implementation of relevant crimes during the epidemic prevention and control period, it should be considered as a serious case, and the strict policy requirements should be reflected in accordance with the law. It should effectively punish deterring illegal crimes, maintain legal authority, maintain social order, and safeguard the safety and health of the people.
It is undeniable that the criminal policy of timely and strict according to law in the Opinions strikes against behaviors such as uplifting prices, online rumors, and producing fake and inferior epidemic prevention materials have effectively guaranteed the safety and health of the people. It has played the role of fixing the heart and strengthening the heart to maintain social stability. However, it is worth noting that the severe and strict criminal policy must be carried out under the guidance of the law, adhere to the principle of criminal law, the principle of criminal law, to prevent the misuse of serious and avoid deviation from the track of the rule of law.
1. The necessity of severe and strict crackdown
(1) Effectively guarantee the safety and health of the people
When answering questions from reporters, the Ministry of Public Security mentioned that in the special period of epidemic prevention and control, the word strict should be adhered to, and the crime of resisting epidemic prevention and control measures such as intentional transmission of new coronary pneumonia pathogens should be severely punished according to law, and the safety of people's lives and physical health should be guaranteed. New Coronary Pneumonia is highly contagious, making timely reporting of its own information a key measure for epidemic prevention and control. However, some people deliberately conceal their travel history for their own benefit, resulting in many people being quarantined or even diagnosed with new coronary pneumonia; violent acts of injuring medical staff; and others beating or even killing epidemic prevention staff... Strictly cracking down on epidemic-related crimes and crimes is more conducive to protecting the health and safety of the public.
(2) The need to maintain normal social order
Since the outbreak of the epidemic, a series of medical protective materials such as mask protective clothing have become rushed to buy, and many criminals have smelled the business opportunities and produced and sold fake and inferior medical equipment (such as fake masks); hoarding and raising prices; Using people's desire for masks to commit fraud on the Internet. The above-mentioned illegal and criminal acts have greatly disturbed the normal economic and social order.
2. Severe and strict focuses on carrying out according to law
The illegal and criminal acts involving epidemic greatly disturbed the development of our national defense epidemic work and caused great harm to the health and safety of the public. In the face of epidemic-related crimes and crimes, the criminal policy of cracking down severely is reasonable. With regard to certain epidemic-related crimes, the public has emphasized that they must be severely beaten, and even there have been calls for the death penalty.
However, the criminal law is the last line of defense to maintain society. The application of the criminal law will directly have a serious impact on human freedom and life, and its application must be cautious. On the one hand, the criminal law’s modest requirements require that other laws be sufficient to protect the relevant legal interests and suppress a certain criminal act, and the criminal law should not be used; while the application of lighter penalties is sufficient to protect the legal interests and suppress the crime, it cannot be used. Heavy penalties. On the other hand, the statutory principle of crime and punishment, as an iron rule of the criminal law, requires that the conviction and sentencing of the perpetrator must be based on the express provisions of the criminal law and prohibits analogy interpretations that are not conducive to the perpetrator. Strictly and severely cracking down on epidemic-related crimes will naturally not deviate from the provisions of the Criminal Law itself, and must be strictly followed in accordance with the law under the guidance of the legal principles of crime and punishment. In addition to this, the principle of adapting crime to punishment also requires severe conviction for serious crimes and minor sentence for minor crimes. Therefore, in the current criminal justice, the judiciary must correctly implement the strict and strict criminal policy when dealing with related crimes involving epidemic diseases. Not only should we crack down severely in response to social concerns, but also to ensure that strictness must be carried out on the track of the rule of law, emphasizing strictly strict according to law, rather than indiscriminately strict strictness.
(1) Prevent the abuse of crimes that endanger public safety by dangerous methods
The application of the crime of endangering public safety by dangerous methods was widely criticized during the epidemic. Since the first case in Xining, Qinghai, Qinghai, on January 31, due to deliberately concealing and falsely reporting back to Wuhan from Wuhan, it has been actively contacting the surrounding people many times, and has been investigated by public security organs for crimes of endangering public safety through dangerous methods. The perpetrator who went to a public place for concealing his own itinerary and physical condition was investigated for the crime. Such as Xue Moumou in Yulin, Guangxi, Zhang Mou in Xuzhou, Jiangsu, Lu Mou in Ganzhou, Jiangxi, Jiang Mouzhong in Ma'anshan, Anhui, and Wang Wangbo in Suzhou, Anhui, etc. As we all know, the crime of endangering public safety by dangerous methods has a high starting point, and the maximum penalty is the death penalty. The public security organs mistakenly thought that the seriousness of the crime and the high statutory sentence would surely deter others. The above-mentioned non-discrimination of specific circumstances and the direct investigation and investigation of the crime are actually using the perpetrator as a tool to prevent others from committing crimes. In view of the dignity of others, it is obviously not in conformity with the principle of adaptation of crime and punishment, which exceeds the necessary limit.
According to the Opinions, there are two kinds of criminals who use dangerous methods to endanger public safety: (1) confirmed cases, and the behavior of the actor is not required at this time to actually cause the harmful results of the spread of new coronavirus. (2) suspected cases , the required behavior at this time actually caused the harmful result of virus transmission. In addition to the above subjects, those who have a history of residence in Hubei and even Wuhan do not constitute the crime. Moreover, the confirmed or suspected actor was required to perform the act of refusing isolation treatment or the isolation device was dissatisfied with the treatment without permission, and entered the public place or public transportation. Whether it is confirmed or suspected can only be determined after a corresponding medical test. However, most of the above-mentioned cases do not know that they have been diagnosed or that they are suspected cases. They do not have the intention to endanger public safety subjectively, and should not be considered as a crime according to law. Therefore, it is necessary to correctly distinguish between the crime of prevention and treatment of infectious diseases and the crime of endangering public safety by dangerous methods, so that the crime and punishment are compatible, and the law is strict.
(2) Beware of the pocketing of illegal business crimes
The act of driving up prices is not of course a crime of illegal business. In the case of “Shanghai Industry and Trade Co., Ltd. and Xie Moumou’s illegal operation”, the Supreme People’s Court stated in the main thrust of the judgment, “For those who exceed the relevant price management regulations, the scope is not large, the illegal gains are not large, and the epidemic prevention and control There is no significant impact, it should not be included in the scope of criminal punishment, and administrative penalties can be imposed by the relevant departments. However, violations of the relevant national market management and price management regulations, and the behavior of driving up the prices of masks and other protective equipment that are urgently needed for epidemic prevention and control have obvious social harm Sexuality not only severely disrupts market order, but also creates or exacerbates panic demand, disrupts social order, and severely affects epidemic prevention and control and resumption of production. If such behavior is serious, it should be convicted and punished with the crime of illegal operation. When determining the crime of illegal business operation, it is necessary to determine whether the behavior meets the elements of the crime, to clarify the boundary between crime and non-crime, and to be sentenced according to law and strictly punished according to law.
(3) The crime of fabricating and deliberately disseminating false terrorist information according to law
The crime is closely related to the crime of fabricating or deliberately spreading false information, but there are obvious differences in the applicable object and the legal penalty. The former is aimed at false terrorist information with a penalty of less than 5 years of fixed-term imprisonment, detention, or control, while the latter is aimed at false epidemics, dangerous conditions, etc., with a penalty of less than three years of fixed-term imprisonment, detention, or control. Correct determination of the above two crimes is of great significance. In a case heard by a court in Guangzhou, the defendant called Li Moumou, who was in love with him, to leave Guangzhou, and dialed the airport phone when he knew he was in good health, lied that Li Moumou was diagnosed and fled to Guangzhou without permission. , Leading the relevant departments to initiate emergency disposal and take isolation measures for Li Moumou and hotel personnel. After testing, there are no suspected symptoms for Li Moumou and other personnel. The court heard that the defendant's fabrication was related to the sudden infectious disease epidemic. The terrorist information that seriously disturbs social order has constituted the crime of fabricating false terrorist information, and should be severely punished according to law and sentenced to 7 months in prison. According to the Interpretation of Several Issues Concerning the Applicable Laws in the Trial of Criminal Cases of Fabricating and Intentionally Disseminating False Terrorist Information implemented by the Supreme People's Court on September 30, 2013, false terrorist information refers to the threat of explosion, biochemical threat, Radiation threats, aircraft hijacking threats, major disasters, major epidemics, and other events that seriously threaten public safety are content that may cause social panic or untrue information about public safety crises. In other words, only the fabrication of false major epidemic information can constitute the crime. However, in this case, the false information fabricated by the defendant clearly did not comply with the provisions of the interpretation, and according to the provisions of the Opinions, it was not appropriate to be convicted of the above-mentioned crimes. Therefore, the result of the judgment in this case is unreasonable and exceeds the strict boundary.
3. Summary
In the face of this sudden and serious epidemic, the strict and strict criminal policy has met public expectations and social needs to a certain extent, and has produced certain effects. But what can be seen is that once the strict and strict criminal policy breaks away from the rule of law and the shackles of the legal principle of crime and punishment, it will become a sword that violates the legitimate rights and interests of the public, and it is not only difficult to protect the legal interests and fight crime The purpose of this is to destroy the rule of law. Strictness cannot be separated from the orbit of the rule of law, and the boundaries of the law cannot be crossed. It must be strictly punished according to law under the principle of statutory punishment for crimes.