非常时期涉疫情犯罪教义学的争议问题

此次涉新冠疫情犯罪,对刑法教义学提出了新挑战,使涉疫情犯罪教义学成为可能,同时带来非常时期刑事政策、刑法理念与规范等方面的争议。依法从严从重涉疫情犯罪之战"疫"刑事政策,并不只是量刑意义的,也涉及从严解释在罪与非罪、此罪与彼罪区分中的实现,涉疫情犯罪的不法性在非常时间尚需进行个别化判断,并需要立足于义务冲突理论化解不法性等争议问题。《关于依法惩治妨害新型冠状病毒感染肺炎疫情防控违法犯罪的意见》在以危险方法危害公共安全罪、妨害传染病防治罪的界限上,没有区分法条竞合与想象竞合,这会导致从严解释的政策意图落空。区分涉疫情犯罪之法条竞合与想象竞合的标准,除传统的法理标准外,还需强化政策标准,并发展与实践"明确优先于不明确"的法理标准。

Controversies on the Dogmatics of Epidemic-related Crimes in Emergency Period

The sudden epidemic-related crimes pose a new challenge to the dogmatics of criminal law to make the dogmatics of epidemic-related crimes possible,and also brings about disputes on the criminal policies,the thoughts and norms of criminal law in the special period.The criminal policy of fighting the"epidemic"that epidemic-related crimes should be cracked down in a more strict and severe way according to laws is not only meaningful in the sentencing sense,but also concerns the realization of strict interpretation in finding guilty or not guilty and guilty of this or that kind of crime.The illegality of epidemic-related crimes needs to be judged individually in special period,and some disputes over illegality needs to be resolved on basis of the theory of conflicted obligations.The Guidelines for Legally Punishing Illegal and Criminal Conducts of Obstructing the Prevention and Control of Covid-19 make no distinction between the concurrent application of legal articles and imaginative joinder of offenses in finding the perpetrator guilty of a crime between the crime of endangering public security by dangerous means or the crime of obstructing the prevention and control of infectious diseases,which will lead to the failure of the policy intention of stricter interpretation.In addition to the traditional jurisprudential standard,it is also necessary to strengthen the policy standards and develop and practice the jurisprudential standard of"a clear provision enjoying priority over unclear ones"in order to distinguish the concurrent application of legal articles and imaginative joinder of offenses for epidemic-related crimes.