The Judicial Application of the Crime of Obstructing the Prevention and Control of Infectious Diseases under the Background of COVID-19 (Part I)

Abstract

The crime of impairing the prevention and control of infectious diseases is stipulated in Section 5 of the crime of impairing social management order in Chapter 6 of the criminal law of the people’s Republic of China (hereinafter referred to as the criminal law), which is article 330 of the criminal law. Under the backdrop of COVID-19, the application of the crime of obstructing the prevention and treatment of infectious diseases is facing new challenges because of the background of COVID-19. This article starts from the theory of the two stratum crime constitution of German and Japanese criminal law. At the illegality, the subject of the crime should be dealt with finely in order to better implement the principle of criminal law, adhere to the principle of a legally prescribed punishment for a specified crime, and at the same time, reconsider blank description of the crime. The legal interest protected by this crime is defined as complex legal interest, and the actual harm result and specific danger are redefined by using “contingency theory”. At the level of responsibility, this paper insists on the view that the form of crime is intentional, and uses the objective exceeding factors theory to make up for it, and refutes several other views. In addition, through the detailed consideration, economic consideration and subjective consideration of criminal policy, this paper discusses how to use this crime scientifically.