傳染病防治法之刑事責任研究

高度經濟發展的現代社會面臨諸多不確定的危險，其中傳染病一直是重要的風險來源，實有探討刑法介入的必要性。刑法第11章的公共危險罪章即包括「違背傳染病法令及散布之罪」。我國傳染病之專責法規為傳染病防治法，並曾發布「嚴重急性呼吸道症候群防治及紓困暫行條例」與「嚴重特殊傳染性肺炎防治及紓困振興特別條例」，疫情期間，特殊條例採取增加刑事處分、放寬刑事處分構成要件、提高罰金上限、提高行政處分上限等內容，也曾影情傳染病防治法之修法。目前實務上刑法192條第1項難以成立，刑法192條第2項之行為是否足生具體之公共危險、有無散布行為之要件，實務上均難以認定與證明。以「傳染病防治刑責類型一：傳染行為」法規分析為例，建議未來「傳染病防治法」第62條刪除「致傳染於人者」之文字，回歸抽象危險犯之犯罪類型。以「傳染病防治刑責類型二：周邊配套」法規分析為例，在囤積居奇罪的部分，目前傳染病防治法第61條與刑法251條功能混淆，混淆不同法益，建議應調高刑法251條之刑度，讓兩罪刑度相當，甚至應相互整合為單一規範。至於散布謠言罪，建議我國於尊重言論自由的前提，將謠言納入社會秩序維護法之行政罰為宜。

關鍵字

傳染病防治法；刑事責任；抽象危險犯

並列摘要

A modern society with highly developed economics may face various uncertain dangers. Among them, infectious diseases have always been an important source of risks. It is necessary to explore the necessity of criminal act intervention. In chapter 11 of the Criminal Act - the Public Dangerous Crimes includes "the crime of violating the communicable disease control act and spreading rumors." In our country, the law regulating infectious diseases is the Communicable Disease Control Act, and the "Interim Regulations for Prevention and Relief for Severe Acute Respiratory Syndrome " and "Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens " have been issued. During the epidemic, those special acts increased criminal sanctions, relaxed the constitutional elements of criminal sanctions, raised the ceiling of fines, loosened the upper limit of administrative sanctions, and have influenced the amendment of the Communicable Disease Control Act. However, it is difficult to constitute paragraph 1 of article 192 of the Criminal Code of the Republic of China in practice. It is also difficult to identify and prove the existence of the behavior that resulted in public dangers or spreading rumors as stated in paragraph 2 of article 192 of the Criminal Code of the Republic of China. Taking the "criminal liability type one for communicable disease control: contagious behaviors" as an example, it is recommended that in the future, "resulted in infecting human beings" in the article 62 of the "Communicable Disease Control Act" to be deleted and goes back to the crime type of abstract danger offenses. Another example is the “criminal liability type two for communicable disease control: peripheral supporting measures.” In terms of the crime of hoarding. currently the function of article 61 of the Communicable Disease Control Act is confused with that of article 251 of the Criminal Code of the Republic of China wtih different legal interests. It is recommended that the penalties in article 251 should be raised so that the penalties in the two Acts are equal, or they should even be integrated into a single norm. As for the crime of spreading rumors, it is recommended that our country, on the premise of respecting the freedom of speech, should incorporate rumors into the administrative penalties of the laws regulating the maintenance of social orders.