妨害传染病防治罪的罪过要素分析

Analysis of the Elements of the Crime of Hindering the Prevention and Control of Infectious Diseases

摘要: 自妨害传染病防治罪在司法实践中被激活之后，其罪过形式一直颇受争议。无论是通说过失说还是故意说、复合罪过说等说法，都难以回应责任主义的需求。笔者主张后疫情时代需要依照要素分析模式对该罪进行罪过形式的重构，降低行为人对结果要素的罪过要求，由此可实现对其处罚范围的精细化处理。

Abstract: Since the crime of preventing infectious diseases was activated in judicial practice, its form of crime has been quite controversial. The general negligence theory, the intentional theory and the compound fault theory have their defects and are difficult to respond to the demand of the doctrine of responsibility. The author holds that in the post-epidemic era, the form of the crime should be reconstructed according to the factor analysis model, adopting the intentional crime re-quirement for the behavior element, and reducing the result element to the fault crime require-ment. The scope of punishment should be refined to highlight the function of criminal law to protect human rights and the retrospection of the restriction of individual rights during the epidemic.