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Liu Yanhong: whose criminal law? What kind of criminal law? |Reflections on the prevention and control of epidemic diseases

Hits: 3890939 2020-03-30

In the context of modernization of governance capacity
On the application of criminal law
Author: Liu Yanhong, Professor, School of law, Southeast University.
Source: comparative law research, No. 2, 2020.
Abstract: through the novel coronavirus pneumonia case, we can see that ordinary citizens have become the object of criminal law preference in the context of the rule of law. The application of criminal law in epidemic prevention and control is rapid and efficient, which plays an active role in maintaining the social order during the period of epidemic prevention and control, but it is lack in the realization of the concept of human rights protection under the rule of law. In the novel coronavirus pneumonia prevention and control, the criminal law punishments are all ordinary citizens who are endangering public security crimes or price crimes such as price raising, counterfeiting and selling. There is an expanding trend. The criminal control of epidemic prevention and control has shown irrational phenomena such as emotional and over intensification. The modernization of state (criminal) governance capacity is still facing great challenges. In the face of the national event of epidemic prevention and control, the criminal law should shift from cracking down on the crime of ordinary citizens to dealing with the crime of the public power subject, focusing on investigating and punishing the main body responsible for the spread of the epidemic caused by concealing or not releasing the important information of the epidemic in time. Citizens are the foundation of modern state, and state governance should reflect citizens' demands rather than just pursue the utilitarian purpose of maintaining social order. Criminal law is not a sword held high on the head of citizens, but a shield for citizens to protect their rights. Criminal governance should completely realize the transformation from state power criminal law to civil rights criminal law, and constantly improve the modernization level of the state's criminal governance ability in emergency management.
When the whole society is striving to fight against the epidemic, how to fight against it according to law has become a topic of concern to the legal people. As an important tool of social governance, criminal law plays an important role in curbing the spread of epidemic situation, severely punishing various illegal crimes such as using epidemic situation to implement anti epidemic material fraud and other anti epidemic prevention and control measures. However, in the context of the modernization of national governance capability and governance system, the modernization degree of criminal governance capability in epidemic prevention and control needs to be improved; in this epidemic prevention and control, criminal governance is based on efficiency, that is, it plays a positive role in effectively maintaining social stability and social order during the epidemic prevention and control period, but the inherent spiritual concept of the rule of law still exists Missing. In the face of such an extremely serious public emergency as the new crown epidemic, through sorting out and analyzing the criminal cases related to epidemic, we can find that the direction of criminal governance seems to have questions: Why are ordinary citizens the targets of criminal sanctions in epidemic governance? What are the deeper reasons and responsible subjects for the spread of the epidemic? Why does the application of criminal law lack such a subject of responsibility? "This prompts us to think about a deeper question whose criminal law is? In other words, what kind of people are protected by criminal law and what kind of people are punished? "If an epidemic fully tests whether the governance ability and governance system of our country have been modernized, then the application of criminal law in epidemic prevention and control fully reflects the grim reality that the public power of criminal law in social governance is not enough and the private rights are not guaranteed. Although there seems to be no law in an emergency, it just shows the level and ability of national governance in dealing with the emergency; the reality of criminal governance in epidemic prevention and control is far from the requirement of the modernization of governance ability in China.
1、 Application of criminal law in epidemic prevention and control: rapid response to ordinary citizens
"It is absolutely undeniable that since the birth of modern criminal law, the lower classes and their typical behaviors have not only become the objects of preference in the constitutive elements of criminal law, but also become the objects of preference in criminal judicial practice." Since the declaration of "closure" on January 23, 2020, various epidemic related crimes have emerged in various places. Every case reported by the news media is accurate and accurate, ranging from the crime of endangering public security by dangerous means to the crime of fraud, from the crime of false advertising to the crime of producing and selling fake and inferior products, from the crime of provoking trouble to the crime of fabricating and deliberately disseminating false information. Scholars required strict investigation of criminal responsibility for epidemic related economic crimes, and analyzed the charges of various epidemic related crimes in combination with epidemic prevention and control. Judges and prosecutors carefully interpreted the application of various epidemic related laws and regulations. The supreme judicial organ timely issued relevant judicial interpretations on the handling of epidemic related criminal cases, and various departments and localities formulated and issued guiding normative documents; judicial practice department We promptly dealt with various epidemic related cases, such as the case of selling fake masks, the case of driving up prices, and the crime of endangering public security, which caused the risk of epidemic spread. All of these have demonstrated the effect of the rule of law in the treatment of epidemic diseases according to law.
Novel coronavirus infection control efforts are being carried out in all areas of the country, maintaining public order and ensuring the safety of people's lives and property. From January 23, 2020 to February 8th, 39 cases of criminal cases involving epidemic diseases were dealt with in the epidemic prevention and control period. The crime of endangering public security by dangerous methods has the largest number of criminal cases, 23 in total, accounting for nearly 60% of all criminal cases. On the surface, there seems to be no problem in the handling of these cases. However, "in the development of law and other fields of thinking, we can never get rid of the dependence on direct and clever ideas, which transcend and change the influence of experience on us.". Careful analysis of these criminal cases, it is hard to avoid doubt, why they are against the general public and even ordinary citizens conviction and sentencing cases?
Take 23 crimes of endangering public security by dangerous methods as examples. The defendants in these cases include Wang and Zhang, villagers in Shaanxi Province, Zhang and Zhang, fujianren and Liu, 64 years old female patients in Xingtai City, Xu, 61 years old female patients in huolingole City, Inner Mongolia Province, 64 years old fan and 67 years old Zou and so on. As for other epidemic related crimes other than crimes of endangering public safety by dangerous means, such as cases of fraud of masks or other epidemic related materials, crimes of producing and selling fake and inferior products, crimes of obstructing public affairs, crimes of counterfeiting registered trademarks or selling fake registered trademarks, etc., the subjects of these crimes are either urban unemployed, or rural villagers, or rural migrant workers in urban areas, Or for the city bottom manual workers such as liquefied company gas workers, and so on. In other words, the targets of criminal governance during the epidemic period are all ordinary citizens. Moreover, the criminal law deals with these citizens' epidemic related crimes very quickly, and many places have adopted the remote video mode or the quick adjudication procedure. The supreme judicial organ also clearly stipulated that the epidemic related crimes should be dealt with more seriously, quickly and strictly through judicial interpretation. For example, the seven types of medical cases mentioned in the interpretation of seven types of medical cases are all criminal crimes against the general public, and the interpretation also requires that "the people's Procuratorate shall review and approve the arrest and initiate the public prosecution as soon as possible"; for example, the supreme judicial organ further clarifies the requirements of "being strict" in the judicial interpretation of combating the crime involving epidemic. According to Article 1 of the aforesaid opinions, "we will resolutely focus on the prevention and control of epidemic situation as the overriding priority at present, make full use of laws and regulations, punish all kinds of illegal crimes impeding the prevention and control of epidemic situation in a timely and strict manner according to law, and provide strong legal guarantee for resolutely winning the prevention and control of epidemic situation." The way to deal with it quickly, strictly and seriously is not new to our country's judicature, which is used to sports law enforcement. However, in the face of the direction reflected by the criminal governance of epidemic related crimes, it is necessary to think about why the criminal governance sanctions in epidemic prevention and control are all ordinary citizens, and why the application of criminal law does not aim at the illegal crimes of public power during epidemic prevention. Novel coronavirus pneumonia is a serious public health emergency. There are various kinds of resources in society. Criminal justice resources are also a kind of social resources, and the use of them should also be cautious. The criminal law should focus on investigating and punishing the main body responsible for the spread of the epidemic caused by concealing or not releasing the important information of the epidemic in time. It seems that the criminal judicial resources should be used in these crimes that the people are most concerned about.
2、 Problems reflected in the application direction of epidemic prevention and control criminal law: what kind of people should be punished by criminal law
The criminal law punishes the criminal, "the criminal is the one who has committed the crime", which seems redundant. However, it promotes us to reflect on the cases that the judicial organs have convicted and meted out punishment during the epidemic prevention and control period. Are the defendants punished really the criminal? In epidemic prevention and control, is it appropriate for ordinary citizens, especially those at the bottom, to be punished by criminal law? It is of great practical significance to analyze this issue in the process of dealing with major public health events in which the human rights of the whole society, especially those who have been isolated or closed down, have been reduced.
First of all, during the period of epidemic prevention and control, there is an improper tendency to expand the scope of punishment for ordinary citizens involved in epidemic related crimes other than the crime of endangering public security by dangerous means.
As mentioned before, epidemic related crimes mainly fall into two categories: Crimes of endangering public safety by dangerous methods and other crimes other than the crimes; the former is a crime of omission against those who conceal epidemic information; the latter is mainly an economic crime of fraud or counterfeiting or a few crimes of hindering social management order. These crimes are all active crimes, and both of them are active crimes The nature is different. For other types of crimes other than crimes of endangering public security by dangerous methods, especially economic crimes such as manufacturing and selling epidemic related fake and shoddy products, there are obvious intentional and objective harmful behaviors, and their behaviors are more serious in the outbreak period. Regardless of the identity of the perpetrators of these crimes, they will not be affected by the criminal law. After all, "protecting the private ownership of chattels from theft was once the Archimedes' fulcrum of classical criminal law, and it can be used to explain why the members of the lower class, who are characterized mainly by the lack of property and at most by their meager income, are the preferred parties of criminal justice, or are not euphemistically described, whether in crime statistics or prison Inside, they are all obviously representative. However, it is not appropriate to deal with some crimes in other types of epidemic related crimes besides the crime of endangering public security by dangerous methods.
For example, in the first home quarantine case involving epidemic situation in Zhejiang Province, Wang Mou, the defendant, went out without permission in violation of the home quarantine regulations, and the relevant staff counseled him to comply with the home quarantine regulations. Wang Mou did not cooperate, so he had a dispute with the staff and attacked Zhu Mou, the community police officer, with his hand, scratching his face and neck. The local court held that "during the epidemic prevention and control period, the defendant Wang attacked the people's police who were performing their duties according to law, and his act has constituted the crime of obstructing official duties, and he was sentenced to nine months' imprisonment according to law". The case was clearly mishandled. In the process of law enforcement, the police often encounter emotional parties, so there are not a few people who have physical contact; Wang just scratched Zhu's face and neck with his hand, neither using external tools nor seriously invading

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