On June 6, 2022, the people's Procuratorate of Fangshan District of Beijing approved the arrest of seven suspect, including Zhou, the actual controller and Wu, the legal representative of Beijing Pushi medical laboratory Co., Ltd. (hereinafter referred to as "Pushi"), on suspicion of obstructing the prevention and control of infectious diseases. So far, the Beijing Municipal Public Security Bureau first disclosed to the public and the media on May 21 this year, and the falsification of detection data by nucleic acid testing institutions, which aroused great public anger and public concern, has entered a new stage of criminal proceedings. The next thing to welcome these suspect will be the case review and prosecution and court trial. Of course, there will be endless Confessions of relevant suspects in prison.
(picture from the network)
The case information publicly disclosed by the judicial organ shows that the main criminal facts of Park Stone Company are: "the original monitoring data is obviously less than the sample testing data". In popular terms, the number of samples actually tested by the laboratory is much smaller than the number of samples actually sampled by them, that is, some nucleic acid samples that have been sampled have not been actually tested, and the institution has issued a negative result test report. In this way, if there are novel coronavirus positive cases in the missed samples, they will be missed, which causes misjudgment in the direction of the government in taking corresponding prevention and control measures in the process of epidemic prevention, and may actually cause the risk of further transmission of COVID-19. Why did the falsification of nucleic acid data of the other two nucleic acid testing institutions announced by the park stone company and the Beijing public security organ constitute a criminal crime? Why does it constitute the crime of obstructing the prevention and control of infectious diseases? What criminal penalties may they face in the future? Next, I will make a brief legal analysis one by one.
01. why does Park Shek intentionally omit to test nucleic acid samples constitute a crime? Why is it defined as the crime of impairing the prevention and control of infectious diseases?
All acts of conviction and punishment are basically directly stipulated in the provisions of the specific provisions of the criminal law of our country. As the saying goes, "a crime and a punishment are prescribed by law", that is, no conviction and no punishment without explicit provisions of the law. Let's first look at the legal provisions on this issue in the specific provisions of China's criminal law.
Article 330 of the criminal law of the people's Republic of China stipulates that "Whoever, in violation of the provisions of the law on the prevention and control of infectious diseases, commits one of the following acts, which causes the spread or serious danger of the spread of class A infectious diseases and the infectious diseases for which prevention and control measures are taken in accordance with the provisions of the law, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the consequences are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years". However, a closer look at the five situations listed in the provisions of the criminal law seems to be inconsistent with the specific criminal facts in this case. Now let's continue to look at the law on the prevention and control of infectious diseases, which is one of the sources of criminal law.
Article 69 of the law of the people's Republic of China on the prevention and control of infectious diseases stipulates that if a medical institution violates the provisions of this Law and has one of the following circumstances, the administrative department of public health of the people's government at or above the county level shall order it to make corrections, circulate a notice of criticism and give a warning; Where the spread, prevalence or other serious consequences of infectious diseases are caused, the persons in charge who are responsible and other persons who are directly responsible shall be demoted, dismissed or dismissed according to law, and the practice certificates of the persons who are responsible may be revoked according to law; If the case constitutes a crime, criminal responsibility shall be investigated according to law:... (2) failing to report the epidemic situation of infectious diseases as required, or concealing, falsely reporting or delaying the reporting of the epidemic situation of infectious diseases.
First of all, it can be seen from the inquiry of relevant public information that Pushi company is indeed a legally registered legal person market entity, and its nucleic acid testing ability meets the establishment conditions and qualification requirements of nucleic acid testing medical institutions, so it was issued with a medical institution practice license, so that it can participate in the testing behavior. During the current round of epidemic prevention and control in Beijing, Pushi company accepted the assignment of the government's epidemic prevention department to conduct nucleic acid sampling and testing for residents within the relevant scope, and then truthfully issue the testing report. It meets the main requirements stipulated in Article 69 of the law on the prevention and control of infectious diseases.
Second, in the process of nucleic acid testing, park stone company did not test the sampled samples and directly issued false nucleic acid testing results. Its behavior was in line with the specific content of item 2 of Article 60 of the law on the prevention and control of infectious diseases, that is, it failed to report the epidemic situation of infectious diseases in accordance with the regulations and lied about the epidemic situation of infectious diseases.
Finally, when the false reporting of epidemic situation by Pushi company has caused the spread, prevalence or other serious consequences of infectious diseases, it will be investigated for criminal responsibility in accordance with the provisions of the above laws. However, this provision does not directly stipulate how to investigate criminal responsibility, so we should look for the answer in the specific provisions of the specific provisions of China's criminal law, that is, the crime of impairing the prevention and control of infectious diseases in article 330 of the criminal law. As for the serious consequence elements of the case, according to the media reports, the nucleic acid agency mainly conducted sampling tests at relevant points in Fangshan District and Shijingshan District, while Fangshan is the hardest hit area for the spread of the epidemic this round. Shijingshan also reported the positive infection again after there was no confirmed case for more than a year, which must be due to the false report issued by the nucleic acid testing agency.
The two legal norms listed above are the main basis for the arrest of Pushi company for the crime of impairing the prevention and control of infectious diseases. Of course, the specific criminal facts and the serious risk of causing the spread or spread of infectious diseases, which are the elements of conviction, also depend on the public security organ to confirm through collecting evidence in the follow-up investigation process. The public security organ should conduct specific data investigation and evidence collection on the risk of causing the spread or spread of epidemic diseases, so as to confirm that the positive infected persons were found in the follow-up detection of the missing persons of Park Shek company, These positive patients participated in social activities because of their missing detection behavior, resulting in the further spread of the epidemic. If the nucleic acid counterfeiting of Park stone company does not meet the requirements of serious circumstances, it cannot constitute a crime.
02. the plain company constitutes a unit crime, and the company shall also be subject to corresponding criminal punishment in addition to the relevant responsible persons approved for arrest
According to the second paragraph of article 330 of China's criminal law, "where a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible for it shall be punished in accordance with the provisions of the preceding paragraph.". The so-called unit crime means that companies, enterprises, institutions, organs, groups and other subjects have implemented the social harmful acts stipulated in the criminal law, and the specific provisions of the criminal law also specifically stipulate the acts constituting unit crime. Unit will, unit behavior and unit interest are the core points of unit crime. It can be seen from the above legal provisions that a unit can constitute the crime of impairing the prevention and control of infectious diseases.
According to the criminal facts disclosed and the level of suspects arrested, the actual controller Zhou is the boss behind the scenes of the company, and Wu is the shareholder and legal representative of the company, both of whom belong to the core decision-making level of the company. Therefore, the criminal means of the case should be decided through the collective discussion of the company, not by a specific tester or department head, which represents the will of the company; The company also enjoys the economic cost benefits saved by the missed inspection station. Therefore, this case is likely to constitute a unit crime, that is, the procuratorial organ will prosecute and punish Beijing parsimony medical laboratory Co., Ltd., and the court will also impose a fine on the company according to law; In addition, Zhou, the actual controller of the company, and Wu, the legal representative, will be sentenced to corresponding penalties as the company's responsible executives, and several other suspects who have been approved for arrest will be punished as other directly responsible persons. The specific grade of sentencing and the announced punishment shall be finally declared and determined by the people's court according to the specific facts, circumstances and the degree of social harm of these subjects' crimes.
03. is it possible to change the suspected crime in this case?
According to Professor luoxiang, a well-known criminal law scholar of China University of political science and law, "similar to environmental quality testing institutions, medical testing laboratories can be regarded as a new type of intermediary. The crime of providing false certificates and the crime of issuing major untrue certificates may be constituted by such units". By studying the legal provisions of article 229 of the criminal law, as for the subject of the constituent elements of the two charges, it is necessary to expand the interpretation of the provisions of the criminal law to include the medical testing laboratory, otherwise it is difficult to include the medical testing laboratory. In judicial practice, such expanded interpretation requires institutions with legal interpretation authority, such as the Standing Committee of the National People's Congress or the organs of the Supreme People's court and the Supreme People's court, to make corresponding and clear legislative or judicial interpretations. Otherwise, it is difficult for specific case handling organs to apply these two charges to punish corresponding criminal acts.
In addition, according to China's criminal law theory, the two charges and the crime of impairing the prevention and control of infectious diseases proposed by Professor Luo actually belong to the relationship between means and purposes, constitute implicated crimes, and are generally convicted in the form of an alternative felony. Comparing the legal punishment of the two crimes, the legal punishment of the above two crimes is lighter than that of the crime of impairing the prevention and control of infectious diseases, so the crime of impairing the prevention and control of infectious diseases should also be convicted and punished.
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