Punish punishment according to law for hindering epidemic situation, prevent and control illegal crimes, and effectively protect people's lives, health and safety

——Jiang Qibo, Director of the Research Office of the Supreme People's Court, Gao Jingfeng, Director of the Legal Policy Research Office of the Supreme People's Procuratorate, jointly answered questions from reporters

Since the outbreak of the new crown pneumonia epidemic, people's courts and people's procuratorates at all levels have resolutely implemented the spirit of the party's central committee's decision-making and the important speech of General Secretary Xi Jinping, and with a high degree of political consciousness and the rule of law consciousness, they have resolutely made epidemic prevention and control a top priority at the moment. We arrested and handled a number of criminal cases that hindered the epidemic situation. Recently, in response to the relevant law application problems encountered in the handling of the case, Jiang Qibo, director of the Research Office of the Supreme People's Court and Gao Jingfeng, director of the Law and Policy Research Office of the Supreme People's Procuratorate, were interviewed by reporters.

I. Question: How to accurately apply the crime of endangering public safety by dangerous methods and the crime of hindering the prevention and control of infectious diseases when dealing with crimes that prevent and control the epidemic?

Answer: The "Opinions on Preventing and Controlling Illegal Crimes Influencing the Epidemic of New Coronavirus Infection Pneumonia" (hereinafter referred to as "Opinions") stipulated by the "Two High Commissions", the Ministry of Public Security and the Ministry of Justice: If one of the following situations endangers public safety, the crime of endangering public safety in a dangerous way shall be convicted and punished in accordance with Article 114 of the Criminal Law and Article 115 (1): 1. Patients with new type of coronavirus infection pneumonia, carriers of pathogens, refused isolation treatment or the isolation period was not completed without permission, and entered public places or public transportation; 2. Patients suspected of new coronavirus infection pneumonia refused isolation treatment or did not Those who have detached themselves from isolation and treatment and entered public places or public transportation and caused the transmission of new coronaviruses. "According to this rule, when dealing with crimes against the prevention and control measures of the epidemic, the crime of endangering public safety by dangerous methods should be carefully grasped. The following three aspects: First, the subject is limited to newly diagnosed new coronary pneumonia , Pathogen carriers, or patients with suspected new coronary pneumonia; the second is the subjective intention to spread the pathogen of new coronary pneumonia; the third is the objective manifestation of refusal to isolation treatment or the isolation period is not completed without permission to detach from isolation treatment, and implemented the entrance to public places or public transportation The behavior of the tool, in which patients with suspected new coronary pneumonia also require the consequences of transmission of the new coronavirus. In practice, the application of the crime of endangering public safety by dangerous methods should be strictly grasped according to law. For the two situations specified in the Opinions, the crime of endangering public safety by dangerous methods should be applied. In addition, the crime of endangering public safety with dangerous methods should also be applied to those who know that they have been diagnosed with neo-coronary pneumonia or suspected patients and maliciously transmitted the virus to an unspecified majority of people due to subjective intentions such as revenge on society. For other acts that refuse to implement the epidemic prevention and control measures, cause the spread of the new type of coronavirus, or are in serious danger of transmission, the crime of obstructing the prevention and control of infectious diseases shall be applied in accordance with Article 330 of the Criminal Law.

2. Question: At present, the crimes that hinder the spread of infectious disease prevention and control measures and cause the spread of infectious diseases, some places have been put on the crime of jeopardizing public safety with dangerous methods, and some have been put on file for the crime of preventing the prevention of infectious diseases. How should the judicial organs be accurate? Charge applicable?

Answer: The 2003 Interpretations of the "Two Highs" on "Specific Issues on the Specific Application of Laws in Handling Criminal Cases Hindering the Prevention and Control of Disasters such as Epidemics of Infectious Diseases" do not provide for the application of crimes against the prevention of infectious diseases. Whoever refuses to undergo quarantine, compulsory quarantine or treatment due to an infectious disease or suspected outbreak of infectious disease, and whose negligence causes the spread of infectious disease, the circumstances are serious and endanger public safety, shall be convicted and punished for the crime of endangering public safety in a dangerous way in accordance with the negligence. This is mainly due to the fact that the former Ministry of Health included SARS as a legal infectious disease in 2003, but it was not explicitly classified as a Class A infectious disease or managed in accordance with the Class A infectious disease, which led to obstacles to the application of crimes against the prevention and control of infectious diseases. In the epidemic prevention and control work, the National Health Commission issued the Announcement No. 1 of 2020 with the approval of the State Council. It has clearly included the new coronavirus-infected pneumonia into the Class B infectious diseases stipulated in the "Infectious Diseases Prevention and Control Law." Disease prevention and control measures. In order to fully reflect the requirements for prevention and control according to law, after the promulgation of the "Opinions", such acts that refuse to implement the preventive and control measures proposed by the Health and Epidemic Prevention Institutions in accordance with the provisions of the Law on the Prevention and Control of Infectious Diseases and cause the spread of new crown pneumonia should apply the prevention and control of infectious diseases. crime. It needs to be further pointed out that the crime of obstructing the prevention and control of infectious diseases endangers public health, which is actually an act that endangers public safety. Its crime with the crime of endangering public safety in a dangerous way is actually a competition relationship between laws and regulations. Prior to the applicable principles of general law, the crime of obstructing the prevention and control of infectious diseases is given priority.

3. Q: How to identify "patients with newly diagnosed new coronary pneumonia" and "suspected patients with new coronary pneumonia"? If the perpetrator was unclear of his or her condition at that time, and was subsequently determined to be a patient with new coronary pneumonia or a suspected patient, can he be identified?

Answer: According to the provisions of Article 78 of the "Communicable Disease Prevention and Control Law", infectious disease patients and suspected infectious disease patients refer to the "Diagnostic Standards for Infectious Diseases Managed by the Infectious Disease Prevention and Control Law" promulgated by the State Council's health administration department, which are in line with infectious diseases. Criteria for the diagnosis of sick and suspected infectious diseases. At present, the National Health Commission and other departments have issued the "Diagnosis and Treatment Program for New Coronavirus Pneumonia", which has clarified the diagnostic criteria for confirmed cases and suspected cases. In practice, the identification of "newly diagnosed patients with new coronary pneumonia" and "suspected patients with new coronary pneumonia" should be based on the diagnosis conclusions and test reports issued by medical institutions. Although the perpetrators have some symptoms of new coronary pneumonia infection such as fever, dry cough, fatigue, etc., but the medical institution has not issued relevant diagnostic conclusions and test reports, they cannot be identified as "confirmed patients with new coronary pneumonia" as stipulated in Article 1 of the Opinions. "Suspected of patients with new crown pneumonia." In handling cases, for the implementation of the prevention and control of obstructive epidemic, it is not diagnosed as a new coronary pneumonia patient or a suspected patient without medical institutions, but after diagnosis and inspection, it is confirmed that the patient is a new coronary pneumonia patient or a suspected patient. The patient or suspected patient's intentional transmission of new corona pneumonia pathogens constitutes a relevant crime.

4. Question: How to determine "violating the provisions of the Law on Prevention and Control of Infectious Diseases" and "prevention and control measures proposed by the health and epidemic prevention agencies in accordance with the Law on Prevention and Control of Infectious Diseases" in the crimes of preventing and controlling infectious diseases in handling cases? For example, can some local emergency headquarters and local governments issue 14-day home isolation notices issued in accordance with the Emergency Response Law and other regulations?

Answer: The "violation of the provisions of the Law on the Prevention and Treatment of Infectious Diseases" in the crime of hindering the prevention and control of infectious diseases in Article 330 of the Criminal Law should be understood in a broad sense. The "Infectious Disease Prevention Law" here is a legal system for the prevention and control of infectious diseases, including the "Communicable Disease Prevention Law", "Emergency Response Law", "Emergency Regulations on Public Health Emergencies" and a series of related to epidemic prevention and control. Laws and regulations and relevant provisions of the State Council. The Law on the Prevention and Control of Infectious Diseases in China specifies the measures that governments at all levels and relevant departments can take to prevent, control and eliminate infectious diseases, and is one of the main legal basis for the prevention and control of infectious diseases. At the same time, laws and regulations and regulatory documents such as the "Emergency Response Law", "Emergency Regulations on Public Health Emergencies" and "National Emergency Plan for Public Health Emergencies" clarify that governments at all levels and relevant departments should respond to public emergencies. Administrative measures that can be taken for health events are also an important legal basis and source for the prevention and control of infectious diseases. Therefore, in handling cases of prevention and control of epidemics, the above laws and regulations and the provisions of normative documents can be used as the basis for determining "violating the provisions of the Law on the Prevention and Control of Infectious Diseases" in the crime of preventing and preventing infectious diseases. At the same time, during the epidemic prevention and control of local governments and relevant departments, epidemic prevention and control measures issued in accordance with the above laws and regulations and regulatory documents, if the legal basis is sufficient and there is no obvious impropriety, they can generally be regarded as the 330th of the Criminal Law. "Prevention and control measures proposed by the health and epidemic prevention agencies in accordance with the Law on the Prevention and Control of Infectious Diseases" as provided in Article 4, paragraph 1.

It should be noted that, in addition to the refusal to implement prevention and control measures, the actor constitutes the crime of obstructing the prevention and control of infectious diseases according to Article 330 of the Criminal Law. It also needs to have a situation that causes the spread of the new crown pneumonia virus or is at serious risk. For general violations of prevention and control measures, public security organs shall be punished by public security organs in accordance with the Law on Public Security Management Punishments, or other administrative penalties shall be imposed by relevant departments.

V. Question: In handling a case, how to determine that the crime of obstructing the prevention and control of infectious diseases "causes the spread of a class A infectious disease or is in serious danger of transmission"?

Answer: In handling the cases of prevention and control of the epidemic, whether it causes the spread of new coronary pneumonia or there is a serious danger of transmission is an important condition for determining the crime of obstructing the prevention and control of infectious diseases. Specifically, it needs to be analyzed and judged in accordance with the specific circumstances of the case, mainly including the following three aspects: First, from the perspective of the subject, whether the actor is a confirmed patient of New Coronary Pneumonia, a carrier of a pathogen, a suspected patient or a close contact, or has entered or exited Areas with a high incidence of the epidemic either have symptoms of new coronary pneumonia infection or belong to other high-risk groups. Secondly, from the perspective of behavior, whether the actor has implemented the behavior of refusing epidemic prevention and control measures, such as refusing to implement quarantine measures, concealing false reports of illness, travel history, residence history, contact history, whereabouts, entering public places or public transportation Tools, close contact with multiple people, etc. Third, from the perspective of behavioral hazard consequences, according to the specific circumstances of the case, comprehensively determine whether the hazards caused by the actor have reached the level of "causing the spread of a class A infectious disease or having a serious risk of transmission", such as causing many people to be diagnosed as patients with new coronary pneumonia or Many were diagnosed as suspected patients. In practice, considering that the crime of obstructing the prevention and control of infectious diseases is a crime against public health, therefore, the transmission and infection between the family members of the actor who caused the common life should not be treated as a crime.

6. Question: In the handling of cases, can violations of official duties be detected for those who refuse to cooperate with the villagers, property security, etc. that participate in the prevention and control of the epidemic by means of violence or threats?

A: When handling cases of obstructing official crimes that hinder the prevention and control of the epidemic, the focus should be on two points: First, accurately grasp the objects of obstructing official crimes. According to the relevant legislative interpretations of the Standing Committee of the National People's Congress, the "Opinions" further clarifies the object of the crime of obstructing public affairs. In addition to the staff of state organs, it also includes engaging in public affairs in organizations that exercise the state's administrative powers related to epidemic prevention and control according to laws and regulations. Personnel who are engaged in official duties in organizations entrusted by state organs to exercise their powers to control epidemic situations on behalf of state organs, and those who are not included in the staffing of state organs but are engaged in official duties of epidemic prevention and control in state organs. Because the epidemic situation is sudden and extensive, in order to prevent and control the epidemic situation to the greatest extent, governments at all levels and relevant departments need to organize mobilization of residential (village) committees, communities and other organizations to implement prevention and control duties and implement control measures. As for the persons in the above organizations, if they belong to "persons who are engaged in public affairs in organizations entrusted by the state organs to exercise their powers of prevention and control on behalf of the state organs", they can be the object of crimes against public service. The second is to accurately grasp the scope of official business behavior. For those who are engaged in epidemic prevention and control tasks according to law for the prevention and control of epidemics, according to the unified requirements of the government and relevant functional departments, actions that are closely related to measures such as epidemic prevention, quarantine, compulsory quarantine, and isolation and treatment can be considered as official acts. For those who do not meet the above two conditions, and are required to detect and isolate people through violence or threats to prevent the epidemic prevention and control work, the crime of obstructing public service can not be determined. According to the nature of the act and the consequences of harm, the crime of intentional injury, the crime of provocation, the insult Crimes shall be investigated for criminal responsibility according to law.

VII. Q: Can the case be dealt with as a crime if the perpetrator has disseminated false information about the epidemic situation during the handling of the case?

Answer: It is necessary to determine whether the crime of intentionally disseminating false information after the dissemination of false information related to the epidemic situation by the actor has been determined. The key is to grasp two points: First, see if the perpetrator has intentionally spread false information. Whether or not criminal responsibility for the dissemination of false information related to the epidemic situation is investigated, whether the perpetrators knowingly spread the false information of the epidemic situation and intentionally spread it. Full consideration should be given to the communicator's level of awareness of the relevant information content and the specific circumstances of disseminating the false information. It should not be determined that the false information was intentionally disseminated and treated as a crime based on the discrepancy between the relevant information and objective reality. The second is to see whether the behavior caused social harm and whether it has seriously disrupted social order. After deliberately disseminating false information related to the epidemic situation and deleting it on its own, it cannot be generalized whether it constitutes a crime. It is necessary to comprehensively consider the size of the spread of false information and the actual impact on social order, etc., and we cannot simply determine whether it may cause harm by “deleting it by itself”. Some information is not reposted for a long time, and no one pays attention to it; some sensitive information may be widely spread a few minutes before it is deleted, which is very harmful. The perpetrators deleted false information in a timely manner on their own, and if it did not cause a large social impact and could not seriously disrupt the social order, criminal prosecution will not be conducted according to law.

8. Question: When handling crimes involving the production and sale of medical equipment that does not meet the standards, can disposable surgical masks and alcohol be considered as "medical equipment"?

Answer: According to the provisions of Article 145 of the Criminal Law, the crime object of the crime of producing and selling medical equipment that does not meet the standards is medical equipment, including medical equipment and medical and sanitary materials. In 2001, according to the relevant regulations of the national administrative department, medical and health materials have been included in the "Classification Catalog of Medical Devices" for classified management. According to this, the medical devices and medical sanitary materials specified in this crime belong to the category of "medical devices".

Article 76 of the Regulations on the Supervision and Administration of Medical Devices, as amended in 2017, stipulates that medical devices refer to instruments, equipment, appliances, in vitro diagnostic reagents and calibrators, materials, and other similar or related devices used directly or indirectly on the human body. article. When specifically identifying the criminal object of the crime of producing or selling medical equipment that does not meet the standards, it may be determined in accordance with the "Medical Device Classification Catalogue" issued by the state administrative department. Common medical protective masks, medical surgical masks, disposable medical masks, protective clothing, and protective glasses are all included in the medical device catalog and belong to medical devices. Other types of masks, alcohol, and other items not listed in the medical device catalogue should not be identified as medical devices. It should be noted that, according to the criminal law and relevant judicial interpretations, it is difficult to determine whether individual protective equipment is medical equipment. If adulteration is adulterated, the fake product is filled with false, the fake product is filled with a substandard product, or the substandard product is used as a qualified product. If it is more than 50,000 yuan, or the value of the goods is more than 150,000 yuan, it may be convicted and punished for the crime of producing and selling fake and inferior products in accordance with the provisions of Article 140 of the Criminal Law. Other serious circumstances that seriously disrupt the market order can also be punished for illegal operations.

9. Question: In handling a case, do the "national standards and industry standards" in the crime of manufacturing and selling medical devices that do not meet the standards only include compulsory standards. If there is no compulsory standard, only what is recommended?

Answer: The "national standards and industry standards" in the crime of producing and selling medical equipment that does not meet the standards should be based on the protection of human health. Criminal law and related judicial interpretations do not limit them to mandatory national standards and industry standards. . According to the spirit of the Criminal Law and the 2001 "Two Highs", "Interpretation of Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Production and Sales of Fake and Inferior Goods", "Regulations on the Supervision and Administration of Medical Devices", and "Regulations on the Management of Medical Device Registration", For industry standards, registered product standards or product technical requirements may be regarded as industry standards.

X. Question: The crime of producing and selling medical equipment that does not meet the standards is deemed to be "serious enough to seriously endanger human health" before it constitutes a crime. How should we handle it in handling a case?

Answer: "Enough to seriously endanger human health" is an important criminal condition for the crime of producing and selling medical equipment that does not meet standards. According to the 2003 "Two Highs" and "Interpretations on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases That Hinder the Prevention and Control of Disasters such as Epidemics of Infectious Diseases" and other provisions, the review and determination of whether the cases are "sufficient to seriously endanger human health" should be reviewed from the handling of the case. Whether it has the functions of protection and treatment, whether it may cause misdiagnosis and treatment, whether it may cause serious injury to the human body, whether it may cause serious harm to human health, etc., comprehensively determine the function, use method and scope of application of the medical device. It should be noted that according to the provisions of the Criminal Law and relevant judicial interpretations, it is difficult to determine whether the production and sale of medical equipment that does not meet the standards is “sufficiently harmful to human health”. If the sales amount is more than 50,000 yuan, or the value of the goods is 150,000 yuan The above may be convicted and punished in accordance with the provisions of Article 140 of the Criminal Law for the crime of producing and selling fake and shoddy products. In addition, if the crime of infringing intellectual property rights is also constituted, the punishment shall be convicted and punished in accordance with the heavier punishment.

11. Question: During the prevention and control of the epidemic, what aspects should be accurately grasped in handling criminal cases of price-raising illegal business?

Answer: During the epidemic prevention and control period, in violation of the relevant state market operation and price management regulations, hoarding and hoarding the urgently needed masks, goggles, protective clothing, disinfectant and other protective supplies, drugs, or other items related to people's livelihood, Anyone who seeks huge profits, has a large amount of illegal income, or has other serious circumstances that seriously disrupt the market order shall be convicted and punished for the crime of illegal business. During the period of epidemic prevention and control, when handling criminal cases of price-raising illegal business, we should pay attention to the following three aspects:

First, pay attention to grasping the "period of prevention and control of the epidemic." On January 20, 2020, the National Health Commission issued the Announcement No. 1 of 2020, approved by the State Council, to incorporate pneumonia infected with new coronavirus into the Class B infectious diseases stipulated in the Law on the Prevention and Control of Infectious Diseases, and adopt the Class A infectious diseases. Preventive and control measures. The announcement of the epidemic will be based on the announcement, and the end of the epidemic will be based on the announcement of the end of the epidemic. During the epidemic prevention and control period, the behavior of soaring prices has more serious social hazards than usual. It is mainly manifested in the following: first, disrupting the overall order of urgently needed materials and basic livelihood supplies for epidemic prevention and control, affecting the deployment of joint prevention and control; and Increasing panic needs and disrupting social order; third, pushing up the cost of protection, resulting in insufficient protection for unspecified groups, especially low-income groups. Therefore, according to the principle of adaptability of crime, responsibility, and punishment, such acts during the epidemic prevention and control should be severely punished according to law.

The second is to pay attention to the scope of "protective supplies, medicines or other items related to people's livelihood." According to the "Opinions" and the "Guidelines on Investigating and Promoting Illegal Price Raising during the Prevention and Control of New Coronavirus Infection and Pneumonia Epidemic" regulations, protective products and drugs mainly refer to masks, goggles, protective clothing, disinfection and sterilization products , Anti-viral drugs and related medical equipment, equipment, etc .; civilian products mainly refer to food, oil, meat, eggs, vegetables, milk and other foods necessary for the people to maintain their basic lives. It should be noted that the situation of epidemic prevention and market supply varies from place to place, and there will be some differences in price-sensitive items. Governments at all levels and relevant departments make specific regulations on the scope of epidemic prevention products and civilian products, which can be made in accordance with the specific local conditions. Identified.

The third is to pay attention to the behavior of driving up price-type illegal business crimes. According to Article 6 of the “Provisions on Administrative Penalties for Price Illegal Acts”, there are three ways to promote price violations: one is to fabricate and disseminate information on price increases and disrupt the market price order; the other is to exceed the normal price except for production and self-use. The quantity or period of storage, a large number of goods with tight market supply and abnormal price fluctuations, are still being hoarded after being warned by the competent price department; the third is to use other means to coax the price and promote the price of goods to rise too fast and too high. In early February, the State Administration of Market Supervision issued the "Guiding Opinions on Investigation and Prosecution of Raising Prices during the Epidemic Prevention and Control of New Coronavirus Infection and Pneumonia", which provides specific regulations on how to identify and investigate the aforementioned illegal acts of raising prices. In practice, when deciding the crime of driving up the price category of illegal business, you should refer to the above provisions, and take into account the specific situation of the local epidemic prevention and control, as well as the actual operating conditions of the actor, subjective malignancy, and social harmfulness of the behavior to determine whether it is " The amount of illegal income is large or there are other serious circumstances, "so as to accurately determine whether the criminal suspect constitutes an illegal business crime. For general price violations, administrative penalties may be imposed by relevant departments.