The influence of epidemic opening on cracking down on illegal crimes

First, the necessity of "severe punishment"

(1) Effectively guarantee people's life safety and health.

When answering a reporter's question, the Ministry of Public Security mentioned that in the special period of epidemic prevention and control, the word "strict" should be taken as the first priority, and crimes such as deliberately spreading COVID-19 pathogens and resisting epidemic prevention and control measures should be severely punished according to law, so as to effectively protect people's life safety and health. COVID-19 is highly contagious, which makes timely reporting of its own information a key measure to prevent and control the epidemic. However, some people deliberately conceal their travel history for their own interests, resulting in many people being isolated and even diagnosed as COVID-19; Violence against medical personnel; Some people beat or even kill epidemic prevention personnel ... it is more conducive to protecting the public's health and life safety to crack down on epidemic-related crimes.

(B) the need to maintain normal social order

Since the outbreak of the epidemic, a series of medical protective articles such as "mask protective clothing" have been snapped up by everyone, and many lawless elements have smelled the business opportunities and produced and sold counterfeit medical devices (such as fake masks); Hoarding and driving up prices; Take advantage of people's desire for masks and commit fraud on the Internet. The above-mentioned illegal and criminal acts have greatly disrupted the normal economic order and social order.

Second, "severe punishment" should be carried out according to law.

Epidemic-related crimes have greatly interfered with the development of epidemic prevention work in China and caused great harm to the public's health and life safety. In the face of epidemic-related crimes, the criminal policy of heavy punishment is reasonable. For some crimes related to the epidemic, the public even stressed the need to crack down severely and even called for the death penalty.

However, criminal law is the last line of defense to maintain society, and its application will directly have a serious impact on people's freedom and life, so its application must be cautious. On the one hand, the modesty of criminal law requires that criminal law should not be used when other laws can be applied to protect related legal interests and suppress certain criminal acts; When the application of a lighter penalty is enough to protect interests and curb crime, a heavier penalty cannot be used. On the other hand, as the iron law of criminal law, the principle of a legally prescribed punishment for a crime requires that the conviction and sentencing of the perpetrator must be based on the explicit provisions of the criminal law, and it is forbidden to explain it by analogy that is not conducive to the perpetrator. Cracking down on epidemic-related crimes naturally cannot be divorced from the provisions of the criminal law itself, and must be severely punished according to law under the guidance of the principle of legally prescribed punishment for a specified crime. In addition, the principle of adapting crime to punishment also requires "heavy punishment for felony and light punishment for misdemeanor", and the crime is commensurate with the sentence, so that the crime and punishment are commensurate and balanced. Therefore, in the current criminal justice, judicial organs must correctly implement the criminal policy of severe punishment when dealing with related epidemic-related crimes. It is necessary to respond to social concerns through severe strikes, and to ensure that strictness must be carried out on the track of the rule of law, emphasizing "strictness according to law" rather than indiscriminate harshness.

(a) to prevent the abuse of the crime of endangering public safety by dangerous means.

The application of the crime of endangering public safety by dangerous means was widely criticized during the epidemic. Since the first case occurred in Xining, Qinghai Province on June+10/October 3 1 May 5438, when he deliberately concealed or lied about coming home from Wuhan, and repeatedly took the initiative to get in close contact with the surrounding people, the public security organs have filed a case for investigation on the crime of endangering public security, and the perpetrators who kept going to public places for concealing their own itinerary and physical condition have also filed a case for investigation on this crime. Such as Xue Moumou in Yulin, Guangxi, Zhang in Xuzhou, Jiangsu, Lu in Ganzhou, Jiangxi, Jiang in Maanshan, Anhui, and Wang Mobo in Suzhou, Anhui. As we all know, the starting point of the crime of endangering public security by dangerous means is high, and the maximum penalty is death. The public security organs mistakenly believe that a serious crime and a high legal penalty will definitely deter others. The above-mentioned behavior of directly filing a case for investigation without distinguishing specific circumstances actually regards the perpetrator as a tool to stop others from committing crimes, which infringes on the dignity of others, obviously does not conform to the principle of suiting crime to punishment and exceeds the necessary limit.

According to the Opinions, there are two subjects of the crime of endangering public security by dangerous methods: (1) the confirmed case, at this time, it is not required that the behavior of the perpetrator actually causes the harmful result of novel coronavirus transmission; (2) Suspected cases, at this time, the behavior required actually caused the harmful result of virus transmission. In addition to the above subjects, people who have lived in Hubei or even Wuhan do not constitute this crime. Moreover, the "confirmed" or "suspected" actor is required to refuse isolation treatment or leave the treatment without full isolation and enter public places or public transport. Whether it is confirmed or suspected can only be determined by corresponding medical tests. However, most of the above cases did not know that they were diagnosed or suspected cases, and they did not have the intention to endanger public safety, so they should not be considered as this crime according to law. Therefore, we must correctly distinguish between the crime of preventing and controlling infectious diseases and the crime of endangering public safety by dangerous means, so as to ensure that the crime is legally prescribed and severely punished according to law.

(2) Beware of pocketing the crime of illegal business operations.

The act of driving up prices may not necessarily be regarded as the crime of illegal business operation. In the case of "an industry and trade co., Ltd. in Shanghai and Xie Moumou's illegal operation", the Supreme People's Court pointed out in the main points of the judgment that "although it exceeds the relevant price management regulations, the scope is not large, and the illegal income is not much, which has no significant impact on epidemic prevention and control, and should not be included in the scope of criminal punishment, and administrative punishment can be imposed by the relevant departments. However, in violation of state regulations on market operation and price management, it is obviously harmful to drive up the prices of protective equipment such as masks urgently needed for epidemic prevention and control, which not only seriously disrupts market order, but also creates or intensifies panic demand, undermines social order and seriously affects epidemic prevention and control and resumes production. If the circumstances of this kind of behavior are serious, it should be convicted and punished for the crime of illegal business operation. " Therefore, when determining the crime of illegal business operation, it is necessary to judge whether the behavior meets the constitutive requirements of the crime, clarify the boundary between crime and non-crime, and make a judgment according to law.

(3) The crime of fabricating and intentionally spreading false terrorist information shall be applied according to law.

This crime is closely related to the crime of fabricating and intentionally spreading false information, but there are obvious differences in the applicable object and legal punishment. The former starts with fixed-term imprisonment, criminal detention or public surveillance of less than five years for false terrorist information, while the latter starts with fixed-term imprisonment, criminal detention or public surveillance of less than three years for false epidemic situations and dangerous situations. It is of great significance to correctly identify the above two crimes. In a case tried by a court in Guangzhou, "the defendant called the airport to prevent Li Moumou, who had a love relationship with him, from leaving Guangzhou knowing that Li Moumou was in good health, and lied that Li Moumou had fled to Guangzhou privately after being diagnosed, which led to the relevant departments to start emergency response and take isolation measures against Li Moumou and hotel-related personnel. After testing, Li Moumou and other personnel are undoubtedly like symptoms. " The court held that the defendant fabricated terrorist information related to the sudden epidemic of infectious diseases, which seriously disrupted social order and constituted the crime of fabricating false terrorist information, which should be severely punished according to law and sentenced to 7 months in prison. According to the provisions of the Interpretation of Several Issues Concerning the Application of Laws in the Trial of Criminal Cases of Fabricating and Deliberately Spreading False Terrorist Information, which was implemented in the Supreme People's Court on September 30th, 20th/KLOC-3rd, "false terrorist information" refers to explosion threat, biochemical threat, radiation threat, aircraft hijacking threat, major disaster, major epidemic situation and other serious threats to public safety, which may cause social panic or public * * *. In other words, only by fabricating false information about major epidemics can this crime be constituted. However, in this case, the false information fabricated by the defendant obviously does not conform to the provisions of this interpretation. According to the provisions of the Opinions, it is not appropriate to identify it as the above-mentioned crime. Therefore, the judgment in this case is unreasonable and beyond the limit of severity.