Lawyer: "B class B management" after the new crown transmission cases involving the case can be withdrawn or acquitted

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The new coronavirus infection will be adjusted from “Category B A” to “Category B B” from January 8, 2023. Recently, a network article inventory that after the adjustment to “Class B B control”, “do not accept community reporting” “refuse to isolate” “do not sweep the premises code “and other seven major acts, will not constitute a crime. In this regard, Shanghai Jintiancheng law firm lawyer Dou Xianshan told reporters that after the policy adjustment on January 8, the violation of the new crown epidemic control measures will not be a criminal situation under China’s criminal law.

In addition, he said, combined with the principle of “retroactive mitigating effect of criminal law” stipulated in Article 12 of the Criminal Law, after January 8, the cases previously involved in the spread of the new crown virus epidemic should be withdrawn, not prosecuted or acquitted, “that is: the public security organs detained in prison, should be withdrawn and immediately released; transferred to the procuratorate review and prosecution, should be withdrawn by the public security organs or not prosecuted by the procuratorate to deal with; has been prosecuted to the court of first or second instance cases, should be withdrawn by the procuratorate or by the court verdict of acquittal.”

After the “B class B control” cases involving the spread of the new crown can be withdrawn or acquitted

On December 26, 2022, the National Health Commission issued a notice stating that since January 8, 2023, the “Category B B Control” for novel coronavirus infections has been implemented. This means that the class A infectious disease prevention and control measures implemented since the beginning of 2020 for the new coronavirus will be officially lifted.

In this regard, Dou Xianshan said, from the perspective of criminal offences, this also means that after the adjustment of the policy, the violation of the new coronavirus control measures will no longer belong to the explicit provisions of Article 330 of the Criminal Law and other crimes.

He said that after the new rules came into effect on January 8, the criminal cases related to the new coronavirus infection, as the original legal basis no longer applies, the original violation of the epidemic prevention policy will no longer constitute a crime under the current provisions.

Such as suspected new coronavirus infection patient refuses to isolate treatment and enter public places or public transportation, causing the risk of transmission; has been diagnosed with new coronavirus infection patient refuses to isolate treatment and enter public places or public transportation, causing the spread of behavior, after January 8 will not constitute an illegal crime.

Dou Xianshang said, combined with Article 12 of the Criminal Law “criminal law retroactive mitigating” principle, after January 8, previously involved in the spread of the new coronavirus cases in progress should be withdrawn, not prosecuted or acquitted, “that is: the public security organs detained, should be withdrawn and immediately released; transferred to the procuratorate for review and prosecution, the case shall be withdrawn by the public security organs or not prosecuted by the procuratorate; cases of first or second instance that have been prosecuted to the court shall be withdrawn by the procuratorate or sentenced to acquittal by the court.”

Article 12 of China’s Criminal Law provides that, after the founding of the People’s Republic of China before the implementation of this Law, if the law at that time is not considered a crime, the law at that time shall apply; if the law at that time is considered a crime, in accordance with the provisions of Chapter IV, Section 8 of the General Provisions of this Law shall be prosecuted, in accordance with the law at that time to pursue criminal responsibility, but if this Law is not considered a crime or a lesser penalty, this Law shall apply.

Prior to the implementation of this Law, in accordance with the laws in force at the time has made the judgment, continue to be effective.

Judgments of conviction involving the new crown epidemic that have come into effect shall continue to be valid

What should happen to those who were previously sentenced for violating the epidemic prevention policy?

During the period of taking preventive and control measures against the new crown virus infection for Class A infectious diseases, according to Article 330 of the Criminal Law, a person who has one of the five statutory circumstances that cause the spread or serious risk of spread of Class A infectious diseases and infectious diseases for which preventive and control measures for Class A infectious diseases have been determined in accordance with the law constitutes the crime of obstructing the prevention and control of infectious diseases and is punishable by fixed-term imprisonment of not more than three years or detention, or, if the consequences are particularly serious, by If the consequences are particularly serious, the penalty shall be a fixed-term imprisonment of more than three years and less than seven years.

The reporter searched in the Chinese magistrate’s instrument network to obtain part of the verdict, more than 80 people for violating the provisions of the Prevention and Control of Infectious Diseases Law during the new crown prevention and control, refused to implement the health epidemic prevention agencies in accordance with the Prevention and Control of Infectious Diseases Law proposed prevention, control measures and other acts, constituting the crime of obstructing the prevention and control of infectious diseases, and was sentenced to prison terms ranging from six months to two years.

Now that the policy has been adjusted, will there be any impact on those who have previously been convicted and punished by the courts? Dou Xianshan said there will be no change. He said, in accordance with Article 3 of the Criminal Law, “the law expressly provided for criminal acts, in accordance with the law conviction and punishment; the law does not expressly provided for criminal acts, shall not be convicted and sentenced.” That is, the principle of legal guilt and punishment.

Therefore, before January 8, 2023, the new coronavirus infection still belongs to the “Class B A control” under the Infectious Disease Prevention and Control Law, and violates the epidemic prevention policy at that time and conforms to the relevant crimes explicitly stipulated in Article 330 of the Criminal Law, and can be convicted and sentenced according to the law as “obstructing the prevention and control of infectious diseases “The conviction and punishment are in accordance with the above-mentioned principle of criminal law.

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At the same time, combined with Article 12 of the Criminal Law, which stipulates that “Judgments that have been made in accordance with the laws in force before the enforcement of this Law shall continue to be effective”, i.e., the principle of “retroactive application of criminal law to the old”, even if the epidemic prevention regulations are changed later, the judgment in force at that time will not be affected, and the original judgment in force will continue to be effective. The original judgment continues to be valid.

Dou Xianshang said that those who are already serving their sentences after the verdict came into effect have no right to appeal on the grounds of the change of the epidemic prevention policy, but they can seek a reduction of sentence or parole through good performance, so as to achieve the purpose of actually reducing their sentences.