Baoxin View
During disasters, ten criminal legal risks we need to be alert to
Release time：2020-02-06
The menacing Wuhan pneumonia is spreading, all kinds of information have maxed out the circle of friends and WeChat groups, and the city of Wuhan this morning is also worrying. Facing the raging virus, thinking about the teachers, classmates, students and friends in Wuhan, I feel a deep sense of powerlessness. As a legal person, although you cannot fight on the front line of the fight against the virus like a doctor (I want to pay tribute to the doctors who are fighting the virus across the country), the legal person has social responsibilities, so I want to talk to you During the disaster, what criminal legal risks we ordinary people need to be alert to.Risk one, driving up prices, making huge profits, seriously disrupting market order, may constitute the crime of illegal business operations. The “Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases Obstructing the Prevention and Control of Emergent Infectious Disease Epidemics” (hereinafter referred to as the “Interpretation”) stipulates in Article 6: Regulations on market operations and price management during the disaster, driving up prices, making huge profits, severely disrupting market order, large amounts of illegal gains, or other serious circumstances, shall follow the provisions of Article 225 (4) of the Criminal Law , Convicted of illegal business operations and severely punished according to law."Risk two, using false advertising to entrap consumers and other behaviors may constitute the crime of false advertising. Article 5 of the "Interpretation" clearly stipulates the conviction standard for the crime of false advertising, focusing on the interpretation of the "serious circumstances" stipulated in Article 222 of the Criminal Law, namely: "Advertisers, advertising operators, and advertisement publishers violate According to national regulations, in the name of preventing and controlling sudden infectious disease epidemics and other disasters, using advertisements to falsely publicize the products or services promoted, causing many people to be deceived, the amount of illegal gains is large, or other serious circumstances are in accordance with the Criminal Law According to Article 222, the crime of false advertising shall be convicted and punished".The third risk is that rumors during a disaster may constitute the crime of fabricating or deliberately disseminating false terrorist information. The first paragraph of Article 10 of the "Interpretation" stipulates: "Whoever fabricates terrorist information related to sudden infectious disease epidemics or other disasters, or knows that such terrorist information is fabricated and deliberately disseminates, seriously disrupting social order, shall be subject to the 200th Criminal Law. According to the provisions of Article 91, the crime of fabricating and deliberately disseminating false terrorist information shall be convicted and punished".Risk 4: Refusing to accept quarantine, compulsory isolation or treatment may constitute the crime of negligent endangering public safety by dangerous means. On January 21, the National Health Commission issued Announcement No. 1 to include the pneumonia caused by the new coronavirus in the Class B infectious diseases specified in the "Law of the People's Republic of China on the Prevention and Control of Infectious Diseases", and to adopt preventive and control measures for Class A infectious diseases. Therefore, the crime of obstructing the prevention and control of infectious diseases in Article 330 of the Criminal Law (requiring to cause the spread of Class A infectious diseases) is still difficult to apply in the process of preventing and treating SARS. Article 1, Paragraph 2 of the "Interpretation" "If you have a sudden infectious disease or a suspected sudden infectious disease and refuse to accept quarantine, compulsory isolation or treatment, negligence causes the spread of the infectious disease, the circumstances are serious, and the public safety is endangered, in accordance with the first of the Criminal Law The second paragraph of Article 15 shall be convicted and punished in accordance with the crime of negligence and dangerous methods to endanger public safety.Risk 5: Violence or coercion hinders prevention and control measures, which may constitute a crime of obstructing official duties. Article 8 of the "Interpretation" stipulates: "Using violence and threats to hinder state agency staff and Red Cross staff from performing prevention, quarantine, compulsory isolation, isolation treatment, etc., taken to prevent and control sudden infectious disease epidemics and other disasters in accordance with the law. In case of control measures, the criminal law shall be convicted and punished in accordance with the first and third paragraphs of Article 277 of the Criminal Law." It needs to be emphasized that the staff who perform the duties of health supervision are also the staff of state agencies. There is a legal basis for obstructing the execution of duties of health supervision law enforcement personnel in accordance with the crime of obstructing official duties. In addition, because medical institutions belong to public institutions, and medical and health personnel belong to public institutions, they should not be the subject of the infringement or obstruction of public affairs. However, since many medical and health personnel are also members of the Red Cross, if they encounter violent resistance When performing duties, the perpetrator can still be held criminally responsible for the crime of obstructing public service.Risk six, the indiscriminate disposal of waste containing pathogens may constitute a crime of environmental pollution. 《Article 13 of the Interpretation stipulates: "Violation of the Law on the Prevention and Control of Infectious Diseases and other relevant national regulations to discharge, dump or dispose of wastes containing infectious disease pathogens, toxic substances or other hazardous wastes into land, water bodies, or the atmosphere, causing the sudden spread of infectious diseases Anyone who causes major environmental pollution accidents such as public and private property to suffer heavy losses or personal injuries or deaths shall be convicted and punished in accordance with the provisions of Article 338 of the Criminal Law as the crime of major environmental pollution accident (changed to the crime of environmental pollution).” The act of disposing of waste containing infectious disease pathogens in violation of the Law on the Prevention and Control of Infectious Diseases is an act that hinders the prevention and control of infectious diseases, and as a result of this act, a major environmental pollution accident is caused and constitutes a crime of environmental pollution.Risk seven, the manufacture and sale of counterfeit and inferior products, counterfeit drugs or inferior drugs may constitute the crime of producing and selling counterfeit and inferior products, the crime of producing and selling fake drugs, or the conviction of the crime of producing and selling inferior drugs. Article 2 of the “Interpretation” stipulates: “During the prevention and control of sudden infectious disease epidemics and other disasters, the production and sale of counterfeit and inferior prevention and protection products and materials, or the production and sale of fake or inferior drugs for the prevention and control of infectious diseases, If a crime is constituted, in accordance with the provisions of Article 140, Article 141 and Article 142 of the Criminal Law, the crime of producing and selling counterfeit and inferior products, the crime of producing and selling counterfeit drugs or the crime of producing and selling The conviction for the crime of inferior drugs shall be severely punished in accordance with the law."Risk eight, manufacturing and selling medical devices and medical sanitary materials that do not have the function of preventing and curing infectious diseases may constitute a conviction for the crime of manufacturing and selling medical devices that do not meet the standards. The first paragraph of Article 3 of the "Interpretation" clearly stipulates: "During the prevention and control of sudden infectious disease epidemics and other disasters, the production of medical equipment and medical hygiene that does not meet the national and industrial standards for protecting human health for the prevention and control of infectious diseases Materials, or selling medical equipment or medical sanitary materials that are known to be used for the prevention and treatment of infectious diseases that do not meet the national and industrial standards for the protection of human health, do not have protection or treatment functions, and are sufficient to seriously endanger human health, in accordance with the 100th Criminal Law According to Article 45, the crime of producing and selling medical equipment that does not meet the standards shall be convicted and shall be severely punished in accordance with the law."Risk 9: Medical institutions or individuals selling medical devices and medical sanitary materials that do not meet the national and industry standards for protecting human health may constitute the crime of selling medical devices that do not meet the standards. The second paragraph of Article 3 of the "Interpretation" stipulates: "Medical institutions or individuals know or should know that medical devices or medical sanitary materials that do not meet the national standards, industry standards for safeguarding human health as prescribed in the preceding paragraph have been purchased and used for compensation. , Convicted of the crime of selling medical equipment that did not meet the standards, and severely punished in accordance with the law."Risk ten. The dereliction of duty by disaster prevention staff may constitute the crime of abuse of power, negligence of duty, or negligence in the prevention of infectious diseases. Article 15 of the "Interpretation" stipulates: "In the prevention and control of sudden infectious disease epidemics and other disasters, it is responsible for organization, coordination, command, disaster investigation, control, medical treatment, information transmission, transportation, material security, etc. If a functionary of a state agency abuses his power or neglects his duty, causing major losses to public property, the country and the people’s interests, he shall be convicted and punished as a crime of abusing his power or neglecting his duty in accordance with the provisions of Article 397 of the Criminal Law." Article 16 of the "Interpretation" stipulates that: "During the prevention and control of sudden infectious disease epidemics and other disasters, the staff of the government health administration department engaged in the prevention and control of infectious diseases, or when they are entrusted by the government health administration department to act on behalf of the government health administration department Persons engaged in official duties in organizations with powers, or those who are not included in the staffing of the government health administration department but are engaged in official duties in the government health administration department, are seriously irresponsible when exercising their powers on behalf of the government health administration department, leading to the spread of infectious diseases Or it is popular and the circumstances are serious, in accordance with the provisions of Article 409 of the Criminal Law, convicted and punished for the crime of negligence in the prevention and treatment of infectious diseases."Attached: "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Obstructing the Prevention and Control of Emergent Infectious Disease Epidemics and Other Disasters" (Fa Shi [2003] No. 8)(Adopted at the 1269th meeting of the Judicial Committee of the Supreme People’s Court on May 13, 2003, and adopted at the 3rd meeting of the Tenth Procuratorial Committee of the Supreme People’s Procuratorate on May 13, 2003)In order to punish criminal activities that hinder the prevention and control of sudden infectious disease epidemics and other disasters in accordance with the law, ensure the smooth progress of prevention and control of emergency infectious disease epidemics and other disasters, and earnestly safeguard the health and life safety of the people, according to the "People’s Republic of China" The Criminal Law and other relevant laws and regulations, hereby explain several issues concerning the specific application of law in handling relevant criminal cases as follows:Article 1 Anyone who intentionally spreads pathogens of sudden infectious diseases that endanger public safety shall be convicted and punished in accordance with the crime of endangering public safety by dangerous methods in accordance with the provisions of Article 114 and Paragraph 1 of Article 115 of the Criminal Law.Refusing to accept quarantine, compulsory isolation or treatment due to a sudden infectious disease or a suspected sudden infectious disease, and the spread of the infectious disease caused by negligence, the circumstances are serious, and the public security is endangered, in accordance with the provisions of the second paragraph of Article 115 of the Criminal Law , Convicted and punished according to the crime of endangering public safety by dangerous means by negligence.Article 2 During the prevention and control of sudden infectious disease epidemics and other disasters, the production and sale of counterfeit and inferior prevention and protection products or materials, or the production and sale of counterfeit or inferior drugs for the prevention and control of infectious diseases constitute a crime, respectively. According to the provisions of Article 140, Article 141, and Article 142 of the Criminal Law, the crimes of producing and selling counterfeit and inferior products, producing and selling counterfeit drugs, or producing and selling inferior drugs shall be convicted in accordance with the law. Heavy punishment.Article 3 During the prevention and control of sudden infectious disease epidemics and other disasters, the production of medical equipment and medical sanitary materials used for the prevention and control of infectious diseases that do not meet the national and industrial standards for ensuring human health, or the sale of medical equipment and medical sanitary materials that are known to be used for the prevention and control of infection Medical equipment and medical sanitary materials that do not meet the national and industry standards for protecting human health, do not have protection or treatment functions, and are sufficient to seriously endanger human health, in accordance with the provisions of Article 145 of the Criminal Law, shall be used for production, The crime of selling medical equipment that does not meet the standards is convicted and severely punished in accordance with the law.Medical institutions or individuals who know or should know that medical devices or medical sanitary materials that do not meet the national or industry standards for the protection of human health as prescribed in the preceding paragraph have been purchased and used for compensation, and they shall be convicted of selling medical devices that do not meet the standards. Severe punishments in accordance with the law.Article 4 The staff of state-owned companies, enterprises, and public institutions, in the prevention and control of sudden infectious disease epidemics and other disasters, due to serious irresponsibility or abuse of power, cause the bankruptcy or serious losses of the state-owned company, enterprise, and cause the state Anyone who suffers a major loss of interests shall be convicted and punished for the crime of negligence of duty by personnel of state-owned companies, enterprises, or institutions or the crime of abuse of power by personnel of state-owned companies, enterprises, or institutions in accordance with the provisions of Article 168 of the Criminal Law.Article 5 Advertisers, advertising operators, and advertisement publishers violate national regulations and use advertisements to make false propaganda about the products or services promoted in the name of preventing and controlling outbreaks of infectious diseases and other disasters, causing many people to be deceived. If the amount of illegal gains is large or there are other serious circumstances, in accordance with the provisions of Article 222 of the Criminal Law, they shall be convicted and punished for the crime of false advertising.Article 6 Anyone who violates the state’s regulations on market operations and price management during the prevention and control of sudden infectious disease epidemics and other disasters, drives up prices, makes huge profits, severely disrupts market order, has large amounts of illegal gains, or has other serious circumstances, in accordance with According to item (4) of Article 225 of the Criminal Law, the crime of illegal business operations shall be convicted and severely punished in accordance with the law.Article 7 During the prevention and control of sudden infectious disease epidemics and other disasters, in the name of researching, producing or selling disaster supplies for the prevention and control of sudden infectious disease epidemics and defrauding large amounts of public and private property, the relevant fraud in accordance with the Criminal Law The provisions of the crime are convicted and severely punished in accordance with the law.Article 8: Those who use violence or threats to obstruct staff of state organs and Red Cross from performing preventive and control measures such as epidemic prevention, quarantine, compulsory isolation, isolation treatment, etc., taken to prevent and control sudden infectious disease epidemics and other disasters, shall follow The provisions of the first and third paragraphs of Article 277 of the Criminal Law shall be convicted and punished for the crime of obstructing official duties.Article 9: During the prevention and control of sudden infectious disease epidemics and other disasters, those who gather crowds to "smash, smash and rob" causing injuries or deaths shall be governed by Article 289, Article 234, and Articles of the Criminal Law. According to the provisions of Article 232, a conviction for the crime of intentional injury or intentional homicide shall be a heavier punishment in accordance with the law. The chief elements who destroy or snatch public or private property shall be convicted of robbery and severely punished in accordance with the provisions of Articles 289 and 263 of the Criminal Law.Article 10: Whoever fabricates terrorist information related to sudden infectious disease epidemics and other disasters, or knows that it is fabricated such terrorist information and deliberately disseminates that seriously disrupts social order, in accordance with the provisions of Article 291 of the Criminal Law, Convicted and punished for the crime of fabricating and deliberately disseminating false terrorist information.Those who use disasters such as sudden infectious diseases to create or spread rumors, instigate splitting the country, undermine national unity, or incitement to subvert state power or overthrow the socialist system, shall be subject to Article 103, paragraph 2, and 100 of the Criminal Law. The second paragraph of Article 5 shall be convicted and punished as the crime of inciting secession or inciting subversion of state power.Article 11: During the prevention and control of sudden infectious disease epidemics and other disasters, if the circumstances are serious for compulsory or arbitrary damage, occupation of public or private property, or disturbances in public places, causing serious disorder in public places, the criminal law shall According to Article 93, a conviction for the crime of creating disturbances and a heavier punishment in accordance with the law.Article 12: Those who practice medicine illegally without obtaining the doctor’s qualifications, have serious circumstances such as causing sudden infectious disease patients, pathogen carriers, suspected sudden infectious disease patients, delaying diagnosis and treatment, or causing cross infection, etc., in accordance with Article 336 of the Criminal Law According to the first paragraph, the crime of illegal medical practice is convicted and severely punished according to law.Article 13 In violation of the Law on the Prevention and Control of Infectious Diseases and other relevant national regulations, discharge, dump or dispose of wastes, toxic substances or other hazardous wastes containing infectious disease pathogens to land, water bodies, and the atmosphere, causing major environmental pollution accidents such as the sudden spread of infectious diseases Anyone who causes serious damage to public or private property or serious consequences of personal injury or death shall be convicted and punished for the crime of major environmental pollution accident in accordance with the provisions of Article 338 of the Criminal Law.Article 14: Corruption, embezzlement of funds and materials used to prevent and control outbreaks of infectious diseases or other disasters or misappropriation for personal use constitutes a crime, respectively in accordance with Article 382 and Article 383 of the Criminal Law , Article 271, Article 384, and Article 272, convicted of corruption, embezzlement, misappropriation of public funds, and misappropriation of funds, and severe punishment in accordance with the law.Misappropriating funds and materials for disaster relief, special care, relief, etc., used to prevent and control sudden infectious disease epidemics and other disasters, and constitute a crime, the directly responsible person shall be used for the crime of misappropriating specific funds and materials in accordance with the provisions of Article 273 of the Criminal Law Conviction and punishment.Article 15: In the prevention and control of sudden infectious disease epidemics and other disasters, the staff of state agencies who are responsible for organization, coordination, command, disaster investigation, control, medical treatment, information transmission, transportation, and material security Anyone who abuses his power or neglects his duty and causes major losses to public property, the interests of the country and the people shall be convicted and punished as a crime of abuse of power or dereliction of duty in accordance with the provisions of Article 397 of the Criminal Law.Article 16 During the prevention and control of sudden infectious disease epidemics and other disasters, the staff of the government health administration department engaged in the prevention and control of infectious diseases, or perform official duties in an organization that is entrusted by the government health administration department on behalf of the government health administration department People who are not included in the staffing of the government health administration department, or who are engaged in official duties in the government health administration department, are seriously irresponsible when exercising their powers on behalf of the government health administration department, leading to the spread or epidemic of infectious diseases, and the circumstances are serious , In accordance with the provisions of Article 409 of the Criminal Law, were convicted and punished for the crime of negligence in the prevention and treatment of infectious diseases.After the state has adopted preventive and control measures against sudden infectious disease epidemics and other disasters, any of the following circumstances falls under the "serious circumstances" as stipulated in Article 409 of the Criminal Law:(1) Failure to comply with the requirements of disaster prevention and control of sudden infectious disease epidemics in areas where sudden infectious disease epidemics and other disasters occur, or sudden infectious disease patients, pathogen carriers, and suspected sudden infectious disease patients Anti-epidemic, quarantine, isolation, protection, treatment, etc., or improper prevention and control measures taken, resulting in the expansion of the scope of infection or the aggravation of the epidemic or disaster;(2) Concealing, delaying, false reporting, or instructing, instructing, or forcing others to conceal, delay, or misreporting the epidemic situation or disaster situation, causing the spread of infection or the situation of the epidemic situation or disaster situation aggravated;(3) Refusal to implement the decisions and orders of the emergency response command agency for the emergence of infectious diseases and other disasters, causing the spread of infection or the aggravation of the epidemic or disaster;(4) Other serious circumstances.Article 17: The people’s courts and people’s procuratorates handle criminal cases that hinder the prevention and control of sudden infectious diseases and other disasters. Those who have surrendered or made meritorious services shall be given a lighter, mitigated, exempted from punishment or made a decision not to prosecute in accordance with the law. .Article 18 The term "disasters such as sudden infectious disease epidemics" as used in this interpretation refers to major infectious disease epidemics that cause or may cause serious damage to public health, mass diseases of unknown cause, and other diseases that seriously affect public health. disaster. 
