Effective legislation to resolve the crisis of the legitimacy of a positive view of criminal law
-- General Comment on the Legislation on Biosecurity Crimes in the Criminal Law Amendment (XI).
Author: Liu Yanhong, Professor of China University of Political Science and Law, Doctoral Supervisor.
Source: Politics and Law, No. 7, 2021, Editor-in-Charge: Du Xiaoli.
Introduction to wonderful sentences:
1. The evaluation of illegality by the positive criminal law concept is more based on the subjective aspect of the perpetrator, that is, the behavior has no value, and the evaluation of the violation by the negative criminal law concept is more based on the result of infringing on legal interests, that is, the result is worthless. The positive criminal law concept has a wide scope of punishment, early punishment, and spiritualization of legal benefits; the negative criminal law concept has a narrow scope of punishment, the result of punishment, and the materialization of legal benefits.
2. Legislation on biosecurity crimes embodies a positive view of criminal law rather than a negative view of criminal law, and at the same time, this positive view of criminal law is a limited positive view of criminal law, which is generally rational and pertinent.
3. The three new crimes of biosecurity crimes in the Criminal Law Amendment (XI) have set up "serious circumstances" as the criterion for criminalization, and while playing a preventive role in biosecurity crimes, they avoid the result of "once the act is committed, it constitutes a crime", and provides a legislative basis for reasonably delineating the scope of conviction and punishment for biosecurity crimes, so it is a rational and positive prevention.
4. Perhaps because of concerns about the unknown, or perhaps because of misunderstandings about the past, criminal law is always eager to bid farewell to the negative tradition of metaphysical criminal law and turn to the path of active preventive criminal law based on risk governance. However, when criminal legislation frequently opens up new criminal themes, it should also stop to think about whether the grounds for criminalization are reliable and whether the scope of punishment is appropriate, because "no reason", "ineffective", "no benefit" or "unnecessary" punishment is essentially not to govern the crime but to be a vicious one.
4. Criminal law can neither "love the past and forget the reality", nor can it indulge in the present and lose tradition, between tradition and modernity, criminal law needs a rational positive prevention program that can stimulate its effectiveness, and in this regard, it is instructive to remember that the mutual criticism of positive and negative criminal law is instructive.
The Criminal Law Amendment (XI) and the modernization of the concept of criminal law
Abstract: The activation of criminal legislation has not only brought about the increase in criminal law provisions and the renewal of criminal law knowledge system, but also accompanied by the leap of positive criminal law concept and the silence of negative criminal law view. Driven by a positive view of criminal law and in line with the revision and improvement of the previous law, the Criminal Law Amendment (XI) has adjusted the legislation on biosecurity crimes and responded to biosecurity risks in a timely and effective manner. By amending the old crimes, adding regulatory content and protection targets, the Criminal Law has expanded the punishment under the framework of existing biosecurity crimes. The Criminal Law criminalizes acts that seriously endanger the safety of human genetic resources, illegally use biotechnology, and illegally dispose of invasive alien species by adding new crimes and increasing the types of violations and types of acts. Whether it is to modify the old crime or add a new crime, the biosecurity crime legislation of the Criminal Law Amendment (XI) is a rational and positive prevention based on the overall national security concept, and these legislations are both preventive and responsive, which can not only prevent potential biosecurity risks in a type, but also fill the legislative loopholes of previous biosecurity crimes, and effectively resolve the legitimacy crisis of the positive criminal law concept.
Keywords: Criminal Law Amendment (XI), Positive Criminal Law View, Negative Criminal Law View, Biosecurity Crimes
In order to respond to biosecurity risks in a timely and effective manner, China has frequently revised and improved relevant legislation in recent years. On February 24, 2020, the 16th meeting of the Standing Committee of the 13th National People's Congress adopted the Decision on Completely Banning Illegal Wildlife Trade, Eliminating the Bad Habit of Eating Wild Animals, and Effectively Protecting the People's Life, Health and Safety (hereinafter referred to as the "Decision"), which stipulates the maintenance of biological and ecological security from the perspective of fasting and prohibiting illegal wildlife trade. On October 21, 2020, the Standing Committee of the National People's Congress published the Wildlife Protection Law (Revised Draft) for Solicitation of Comments (hereinafter referred to as the Wildlife Protection Law) on the "Chinese Network", which revised and improved the Wildlife Protection Law and strengthened the legal protection of public health. On October 17, 2020, the 22nd meeting of the Standing Committee of the 13th National People's Congress passed the Biosecurity Law of the People's Republic of China (hereinafter referred to as the Biosecurity Law), which provided a timely response to how the state can prevent and respond to biosecurity at the institutional level. On December 26, 2020, the 24th session of the Standing Committee of the 13th National People's Congress adopted the Amendment (11) to the Criminal Law of the People's Republic of China (hereinafter referred to as the "Criminal Law Amendment (11)"), which adapts to the changes in the situation of major international and domestic public health emergencies, summarizes the experience and legislative needs of the prevention and control of the new crown epidemic, connects with the Biosecurity Law, etc., modifies the existing crimes in the field of biosecurity, and adds new crimes related to biosecurity.
The entire Criminal Law Amendment (XI) is the legislative practice of a positive preventive view of criminal law, which makes the criminal law show a development trend from a guarantee law with freedom and human rights as the core to a simple means of social control. Under the background of the current "positive view of criminal law advocated by the concept of preventive criminal law has not been fully accepted by the academic community", how to delineate the reasonable boundaries of criminal legislation has once again become an important topic of concern in criminal law theory and practice. However, the overall position of the Criminal Law Amendment (XI) is too positive does not mean that the partial criminalization position is unreasonable, and the biosecurity crime legislation, which is the embodiment of the positive criminal law concept, can be described as legal and reasonable, and is an effective practice to resolve the crisis of the legitimacy of the positive preventive criminal law concept, which is generally in line with legislative rationality and is worthy of recognition.
I. Positive Criminal Law View and Negative Criminal Law View: The long and negative criminal law view in the era of activation
Living freely in this world is the most basic need of everyone, and at the same time the most difficult ideal to achieve. The advent of a risk society has sharpened the antagonism between the individual and the public, and human society is "faced with the choice of whether to build a free society or a community society." The positive view of criminal law and preventive legislation are precisely the choices made in the field of criminal governance in our country in favor of the latter between the protection of citizens' individual freedoms and the social community.
The theory of criminal law has undergone changes from the classical period to the modern era. The criminal law ideology of the theory of retribution is the embodiment of the simple concept of justice of human beings that "good is rewarded with good, and evil is rewarded with evil", and the purpose of punishment is to punish crimes and restore justice. The negative view of criminal law is a concept that is compatible with the classical criminal law retribution and punishment ideology. However, the function of criminal law is not only to punish crimes, but with the changes of the times, crime prevention has gradually become an important goal of modern criminal law. The advent of the risk society has put forward new challenges to the function of criminal law, people have seen the shortcomings of traditional criminal law, the retribution punishment that stays in the simple concept of justice cannot meet the social governance needs for risk prevention, the threat of legal benefits is everywhere, the legal interests that need to be protected are increasing day by day, "the loopholes in criminal punishment are becoming more and more obvious", "only by adopting a positive view of criminal law and using criminal law to effectively protect legal interests can we meet the reasonable needs of legal interest protection". In contrast, the negative view of criminal law based on retribution based on ex post facto punishment is considered to "lead to the rigidity of criminal legislation and the mechanization of criminal justice" and "insufficient attention to the macro-social context". The development and change of agricultural society to industrial society to risk society makes the use of criminal law to intervene early to prevent risk occurrence, which seems to increasingly become the main task of criminal law in modern risk society, and the protection of civil liberties and human rights advocated by classical criminal law and core criminal law gives way to the maintenance of social security and order. The positive view of criminal law is precisely the concept of criminal law that is consistent with the theory of criminal law and preventive punishment in the risk society. In the 18th, 19th and first half of the 20th century, the negative view of criminal law was the mainstream concept of criminal law, and in the second half of the 20th century, especially at present, the positive view of criminal law gradually occupied an important position and had the potential to replace the negative view of criminal law. The positive view of criminal law and the view of negative criminal law have become a pair of categories of criminal law in the current era of legislative revitalization.
The positive criminal law concept takes the risk prevention of legal interest infringement as the core, which is completely different from the basic position of the negative criminal law concept with the result punishment of legal interest infringement as the core. "Legal interests have the function of acting as a means of the free development of individuals, and therefore have value and are protected by criminal law, and if the substance is changed in a way that harms the function of the means of legal interests, then the value of legal interests will undoubtedly decrease, which is the so-called infringement of legal interests." However, because the positive view of criminal law is too positive, penal punishment has been used when the value of legal benefits has not been reduced, that is, the infringement of legal benefits has not yet occurred; if the means of legal interest infringement change the substance of legal interests, such a criminal law concept is not positive, but the traditional criminal law concept of retribution. The focus of the positive criminal law concept lies in the positive posture, not to punish after the fact but to prevent it in advance, so the ultimate goal of the positive criminal law concept is to build the criminal law into a preventive criminal law. The positivity of the gesture, embodied in action, is to transcend the harm of legal interests and treat them as crimes only when the act is in danger of infringing on legal interests. Therefore, the positive criminal law concept actually holds a basic position centered on the risk prevention of legal interest infringement. The immediate consequence of this position is the expansion of criminal law protection, which is achieved through the expansion of the protection of collective legal interests, the expansion of concrete and abstract dangerous prisoners.
First of all, the basic position of taking the risk prevention of legal interest infringement as the core has led to the subjective evaluation of the wrongful conduct and the expansion of the protection of collective legal interests in criminal law. With the risk prevention of legal interest infringement as the core, its essence is to try to attribute the damage results that were once considered only accidental to specific and current acts. In other words, the legislator believes that all acts may be the risk of leading to the infringement of legal interests, which prompts the evaluation of wrongdoing to consider the future consequences of the behavior in the time dimension and the social impact of the behavior in the social dimension. In other words, it is the law that "simulates" all acts as risky behaviors, and legally determines that all current acts may have consequences that the law does not want, so that the risk of infringement of legal benefits becomes an inherent feature of all acts. However, whether the risk of infringement of legal interests possessed by a certain act will be transformed into the risk of infringement of legal interests worthy of criminal punishment is almost impossible to start from the objective level, and can only be evaluated in combination with the subjective aspects of the perpetrator, and the connotation of the illegal behavior can be enriched with the subjective wrongful intention of the actor. However, based on the subjective risk element of the perpetrator, the risk of legal interest infringement of such acts has been tried to be typed and transformed into an abstract danger of legal interest infringement worthy of criminal punishment, which has led to a distinct subjective trend in the evaluation of wrongdoing, and the scope of protection of collective legal interests has been significantly expanded.
Secondly, the basic position of taking the risk prevention of legal interest infringement as the core has led to the expansion of the protection of the criminal law on the risk of legal interest infringement, and the number of criminalization of dangerous acts has increased sharply. On the one hand, the positive criminal law concept takes the risk prevention of legal benefit infringement as the core, resulting in an increase in the number of specific dangerous criminals in the criminal law. "When whether or not an interest suffers substantial damage depends only on chance, the value of the interest in this situation is reduced to the owner of the interest. Whether or not such a benefit suffers substantial damage depends only on the contingent state of affairs, which is called a concrete danger".
For example, one of the new articles 134 of the Criminal Law added to article 4 of the Criminal Law Amendment (XI) only requires that "the provisions on safety management are violated in production and operation" and that "there is a real danger of major casualties or other serious consequences" can constitute the crime of dangerous operation, in other words, the production operation itself is in an unsafe state only due to the closure or destruction of the monitoring directly related to production safety or the falsification of relevant data. With the real danger of major casualties or other serious consequences, i.e. specific dangers, which potentially threaten the safety and economic value of persons in production activities, "it is entirely possible and reasonable to regard specific hazards as independent damages directed at interests, even though the state of danger exists only for a short time". Even if the real danger exists for a short time, as long as there is a possibility of legal infringement, it will be treated as a crime based on the risk prevention stance. On the other hand, the positive view of criminal law, with the prevention of the risk of legal benefit infringement as the core, will increase the protection of all kinds of abstract dangers that endanger people's lives, and the number of abstract dangerous criminals in criminal law will also increase. "When people are not fully confident that interests are not harmed when they are invested, they are not rationally invested in them as a means of free development." For example, when people think that walking under a high-rise building may be hit by objects thrown from a high altitude, resulting in "head safety" not being guaranteed, when people think that walking in the city may be threatened by a deep hole due to the theft of manhole covers, when people driving on the road may be hit by drunk or malicious racing vehicles, when people riding a bus may encounter others snatching the steering wheel and endanger driving safety, people will not walk from the bottom of high-rise buildings, will not go out to walk in the city. No driving on the road, no buses. However, although one can do so, "this limits the possibility of free development, and for the owner of the interest, the interest does not have the value it could have." In such a situation, where the security conditions required for the rational use of benefits are not guaranteed, one can call the situation an abstract danger. One might evaluate the abstract danger of legal benefit in this sense as an independent form of harm". Therefore, the crime of dangerous driving, the crime of obstructing safe driving in article 133 bis of the Criminal Law added to article 2 of the Criminal Law Amendment (XI), and the crime of throwing objects from a high altitude in article 291 bis of the Criminal Law added to article 33 of the Criminal Law Amendment (XI) are all crimes established against the abstract danger of legal interests, that is, abstract dangerous crimes.
In short, the positive view of criminal law takes prevention as the main aspect, and thus is completely different from the negative view of criminal law with punishment after the fact as the main aspect. The expansion of criminal punishment, marked by the collectivization of legal benefit protection and the criminalization of dangerous acts, is aimed at giving full play to the preventive function of criminal punishment, and "striking early and hitting small" can play a preventive role in advance. The evaluation of illegality by the positive criminal law concept is more based on the subjective aspect of the perpetrator, that is, the behavior has no value, and the evaluation of the violation by the negative criminal law concept is more based on the result of infringing on legal interests, that is, the result is worthless. The positive criminal law concept has a wide scope of punishment, early punishment, and spiritualization of legal benefits; the negative criminal law concept has a narrow scope of punishment, the result of punishment, and the materialization of legal benefits. Because the negative criminal law concept has prudence and lag, and the positive criminal law concept is preventive and forward-looking for the prevention of risks in a risk society, the latter has become an important criminal law concept for the governance of risk society.
II. Legislative Adjustment of Biosecurity Crimes in the Criminal Law Amendment (XI): Amending Old Crimes and Adding New Crimes
The criminal legislation of modern society has long undergone tremendous changes with the change of crime and the development of the times. With the role of the state changing from the traditional "night watchman" who defends liberalism to the "guarantor" of the safety of citizens in the welfare state, how to solve the threat posed by the development of biotechnology to human biosecurity, how to respond to the challenges of traditional criminal law in the era of "the continuous development of biological science and technology and the high risk caused by its side effects", and build a reasonable normative system from the level of the legal system, especially to give full play to the role of the final guarantee law of the criminal law, It has become an important issue that cannot be avoided in modern criminal legislation under the rapid development of biotechnology in the 21st century. "In order to protect public health security, summarize the experience and needs of the prevention and control of the new crown pneumonia epidemic, and link with the revision and formulation of laws such as the Wildlife Protection Law, the Biosecurity Law, and the Law on the Prevention and Control of Infectious Diseases", the Criminal Law "amends the crime of obstructing the prevention and control of infectious diseases" to "safeguard national security and biosecurity", "adds three types of criminal acts" to "prevent and control major public health security risks from the source", and revises the criminal provisions on infringement of wild animals, thus greatly strengthening the public health criminal rule of law guarantee, in response to the " The relevant provisions of the Biosecurity Law on the maintenance of national and biosecurity, as well as the provisions of the Law of the People's Republic of China on the Prevention and Control of Infectious Diseases (hereinafter referred to as the Law on the Prevention and Control of Infectious Diseases) and the Wildlife Protection Law, as amended on June 29, 2013, reflect the Criminal Law's position on active prevention of biosecurity risks.
(1) Important measures for legislation on biosecurity crimes: Revise old crimes to expand the scope of punishment
After the outbreak of the new crown epidemic, how to summarize the lessons learned and give play to the preventive role of the criminal law in epidemic prevention has become an important issue in the revision of the criminal law. The Criminal Law Amendment (XI) actively promotes the convergence with the previous laws such as the Wildlife Protection Law, the Infectious Disease Prevention and Control Law, the Food Safety Law and other laws, amends existing crimes in the field of biosecurity, and strengthens the criminal rule of law guarantees for biosecurity.
First, Article 37 of the Criminal Law Amendment (XI) amends Article 330 of the Criminal Law to the crime of obstructing the prevention and control of infectious diseases, including amending the constituent elements of the crime, as well as this crime as an administrative element of administrative crimes but previously inaccurately expressed, strengthening the criminal punishment for violations of epidemic prevention and control provisions, improving the connection with the Law on the Prevention and Control of Infectious Diseases and other precursor laws, and embodying the preventive legislation on biosecurity crimes.
First of all, the scope of the crime of obstructing the prevention and control of infectious diseases has been expanded, the actual needs of the prevention and control of the new crown epidemic have been responded to in a timely manner, and the scope of "infectious diseases that have been determined to take measures for the prevention and control of Class A infectious diseases in accordance with the law" has also been included in this infectious disease. Article 37 of the Criminal Law Amendment (XI) amends the provisions of article 330 of the former Criminal Law that "causes the spread or has a serious risk of spreading a Class A infectious disease" to "causes the spread of a Class A infectious disease and an infectious disease that is determined in accordance with law to take measures for the prevention and control of a Class A infectious disease or has a serious risk of spreading", thereby expanding the scope of the crime of this crime and including "infectious diseases that have been determined to take measures for the prevention and control of Class A infectious diseases in accordance with law" into the scope of infectious diseases in this crime. Article 3 of the Law on the Prevention and Control of Infectious Diseases stipulates that "the infectious diseases provided for in this Law are divided into Categories A, B and C", and the prevention and control of the epidemic in China is the corresponding prevention and control measures taken in accordance with the classification system of infectious diseases established by the Law on the Prevention and Control of Infectious Diseases. From the prevention system of infectious diseases such as vaccination, monitoring and early warning, to the system of epidemic reporting, notification and publication, as well as control measures such as epidemic isolation and closure of epidemic areas, different prevention and control measures are taken according to the severity of infectious diseases at different levels. The new coronavirus epidemic caused by pneumonia caused by the new coronavirus is highly contagious, widely spreading and harmful, posing a great threat to human life and health, and posing a severe challenge to the country's epidemic prevention and control capabilities. The new coronavirus is a new outbreak of a new type of virus in human history, which is naturally not stipulated in the previous Law on the Prevention and Control of Infectious Diseases. In order to better combat the new crown epidemic and legally and effectively take targeted prevention and control measures, the Announcement of the National Health Commission of the People's Republic of China (No. 1 [2020]) on January 20, 2020 stipulates that "with the approval of the State Council, it is hereby announced as follows: First, the pneumonia infected by the new coronavirus will be included in the Class B infectious diseases stipulated in the Law of the People's Republic of China on the Prevention and Control of Infectious Diseases, and the prevention and control measures for Class A infectious diseases will be adopted." 2. Incorporate pneumonia infected by the novel coronavirus into the management of quarantine infectious diseases as stipulated in the Border Health and Quarantine Law of the People's Republic of China" The reason why the announcement lists the new crown virus as a class B infectious disease but also stipulates the prevention and control measures of class A infectious diseases, because although the new crown pneumonia is listed as a class B infectious disease in the degree of harm, from the perspective of the degree of epidemic, it is an acute respiratory disease, mainly spread by droplets and contact, etc., the infectivity is very strong, if not prevented and controlled in time, it is easy to cause large-scale transmission, so it is necessary to take measures for the prevention and treatment of class A infectious diseases. The provisions of the announcement actually amend the Law on the Prevention and Control of Infectious Diseases, clarifying the new crown virus as a Class B infectious disease under the law. At the same time, the amendment of the announcement is also in line with the provisions of article 3 of the law, "the infectious diseases provided for in this law are divided into class A, B and C", and "the administrative department of health under the State Council may, according to the outbreak, epidemic situation and degree of harm of infectious diseases, decide to increase, reduce or adjust the diseases of class B and C infectious diseases and publish them". Therefore, the announcement of the National Health Commission and the revision of the Law on the Prevention and Control of Infectious Diseases are not only effective and timely, but also have played a good legal effect in the fight against the new crown epidemic. In order to effectively connect with the Law on the Prevention and Control of Infectious Diseases, the timely addition of "infectious diseases that shall be determined in accordance with the law to adopt measures for the prevention and control of Class A infectious diseases" in the Criminal Law Amendment (XI) also includes the scope of infectious diseases in this crime, meets the actual needs for the prevention and treatment of the new crown epidemic, provides legal support for the prevention of biosecurity risks such as new sudden infectious diseases, and is the embodiment of the Criminal Law's active response to biosecurity risks.
Secondly, it is further connected with the "Law on the Prevention and Control of Infectious Diseases" and other pre-laws, and adds provisions and modifies the behavior mode of the crime of obstructing the prevention and control of infectious diseases, as well as the relevant expressions of the epidemic prevention agencies, so that the extension of the objective behavior of the crime is more comprehensive, and the expression of the epidemic prevention institutions is more in line with the provisions of the previous law and the actual operation of the health administrative organs.
This articulation is reflected in two ways. On the one hand, there are new circumstances in which the sale and transportation of articles contaminated with infectious disease pathogens constitute a crime. Article 37 of the Criminal Law Amendment (XI) stipulates that "the sale or transportation of articles contaminated by infectious disease pathogens or possibly contaminated by infectious disease pathogens in epidemic areas without disinfection treatment" is the act of obstructing the prevention and control of infectious diseases. In view of the fact that the virus can be transmitted through various channels such as cold chain food and express parcels during the prevention and control of the new crown epidemic, article 27 of the Law on the Prevention and Control of Infectious Diseases stipulates that "for sewage, dirt, places and articles contaminated by pathogens of infectious diseases, relevant units and individuals must carry out strict disinfection treatment under the guidance of the disease prevention and control agency or in accordance with the sanitary requirements proposed by them; if disinfection is refused, the local health administrative department or disease prevention and control agency shall carry out compulsory disinfection treatment" 。 For example, during the Spring Festival, "the increase in the number of people returning from abroad, the increase in the flow of people in china, the increase in gathering activities, and the increase in the logistics of imported cold chain food and goods have further increased the risk of epidemic transmission", however, people are always concerned about the flow and aggregation of people, ignoring the spread of the virus that may be caused by the spread of goods. To this end, in order to prevent the circulation of articles contaminated by infectious disease pathogens and the spread of infectious disease poisons, article 37 of the Criminal Law Amendment (XI) adds such acts as criminal acts, thus giving full play to the positive preventive role of the Criminal Law in public health governance.
On the other hand, article 37 of the Amendment (XI) to the Criminal Law stipulates that "refusing to implement the prevention and control measures proposed by people's governments at or above the county level and disease prevention and control agencies in accordance with the Law on the Prevention and Control of Infectious Diseases" constitutes a crime, thus replacing the "health and epidemic prevention institutions" in article 330 of China's Criminal Law with "people's governments at or above the county level and disease prevention and control institutions". This amendment has achieved an effective connection with the Law on the Prevention and Control of Infectious Diseases. Article 6 of the Law on the Prevention and Control of Infectious Diseases stipulates that "the administrative department of health under the State Council shall be in charge of the prevention and treatment of infectious diseases and its supervision and management throughout the country." The health administrative departments of local people's governments at or above the county level shall be responsible for the prevention and treatment of infectious diseases and their supervision and management within their respective administrative areas." It can be seen that the concept of "health and epidemic prevention institutions" is not used in the pre-existing law, but the concept of "health administrative departments of local people's governments at or above the county level" is used, and since this is the case, the statutory offenders stipulated in the criminal law should naturally be docked with the pre-existing law, because whether it is a written or unwritten constituent element, for statutory offenders, they must violate the relevant national regulations, "the factual elements stipulated in the constituent elements of statutory offenders, the core of which is administrative elements, they are not created by the criminal law, Rather, it was created in the administration and regulation of the state. They do not express the record of the self-evil of the criminal law, but the protection and emphasis of administrative laws and regulations." In particular, the crime of obstructing the prevention and control of infectious diseases clearly stipulates that this crime must "violate the provisions of the Law on the Prevention and Control of Infectious Diseases", and since this is the case, when interpreting whether it is an act of obstructing the prevention and control of infectious diseases, it must be based on the "Law on the Prevention and Control of Infectious Diseases" and other pre-laws, so that the expression of the basic administrative elements of this crime by the epidemic prevention institution should be docked with the pre-existing law, so as to maintain the characteristics of the nature of the statutory violations at the administrative level and the crime at the criminal level, but the basic administrative elements are consistent in the administrative law and the criminal law. This modification is also consistent with the functional allocation and institutional setup of disease prevention and control, so it is worthy of recognition. According to the provisions of the Law on the Prevention and Control of Infectious Diseases, the authority of disease prevention and control is vested in local people's governments at or above the county level and their health administrative departments, and disease prevention and control institutions at all levels, as public institutions, undertake infectious disease monitoring, forecasting, epidemiological investigation, epidemic situation reporting and other prevention and control work according to authorization. From the perspective of administrative law, local people's governments at or above the county level and their health administrative departments belong to the administrative subjects with authority, and disease prevention and control institutions belong to authorized administrative entities, all of which are independent administrative subjects with the right to exercise disease prevention and control powers. The "health and epidemic prevention" is only one of the disease prevention and control powers, not an independent authority, so the concept of "health and epidemic prevention institutions" is not used in the Law on the Prevention and Control of Infectious Diseases. Therefore, compared with "local people's governments at or above the county level and disease prevention and control agencies", the term "health and epidemic prevention institutions" is not scientific and reasonable in administrative law itself. The Amendment (XI) to the Criminal Law replaces the "health and epidemic prevention institutions" with "people's governments at or above the county level and disease prevention and control institutions", which is in line with the provisions of China's current legislation and the reality of epidemic prevention and governance, and the revision is scientific and reasonable.
Second, article 41 of the Criminal Law Amendment (ELEVEN) amends article 341 of China's Criminal Law, adding the crime of illegal hunting, purchasing, transporting and selling terrestrial wild animals, strengthening the protection of terrestrial wild animals, expanding the scope of punishment for wildlife crimes, improving the connection with the Wildlife Protection Law, and embodying the criminal law's preventive stance on wildlife crimes. After the outbreak of the new crown epidemic, in order to maintain biosecurity and ecological security, the state has completely banned and punished illegal wildlife trade, eliminated the bad habit of indiscriminately eating wild animals, and the revision of the Wildlife Law has also attracted much attention. The Environment and Resources Protection Committee of the National People's Congress pointed out in its explanation of the Wildlife Protection Law of the People's Republic of China (Revised Draft) that in the "third chapter of the Wildlife Protection Law", specific provisions have been added to prohibit the consumption of wild animals under national key protection, 'three haves' terrestrial wild animals and other terrestrial wild animals. It is forbidden to hunt, trade or transport terrestrial wild animals that naturally grow and reproduce in the wild environment for the purpose of consumption." To this end, article 31 of the Wildlife Protection Law stipulates that "it is forbidden to eat wild animals under national key protection, terrestrial wild animals with important ecological, scientific and social values, and other terrestrial wild animals." It is forbidden to hunt, trade, or transport terrestrial wild animals that naturally grow and reproduce in the wild environment for the purpose of food. It is forbidden to produce or trade food made from wild animals and their products provided for in the first paragraph of this article. It is forbidden to illegally purchase wild animals and their products provided for in the first paragraph of this article for consumption. "These amendments to the preceding law require the criminal law to provide a corresponding safeguard law role. The healthy and natural growth of terrestrial wild animals that naturally grow and reproduce in the wild environment is of great significance to the healthy development of human beings themselves. According to the relevant assessment opinions of the China Ecological Environment Status Bulletin, there are a series of evaluation indicators for whether the ecological environment is good or not, among which "high vegetation coverage, rich biodiversity, and stable ecosystem" can reach the excellent standard of "ecological environment status index greater than or equal to 75". In recent years, with the intensification of human consumption of wild animals, species diversity is declining dramatically. "Biodiversity is a major determinant of ecosystem productivity, stability, resistance to biological invasions and nutrient dynamics, and the higher the biodiversity, the wider the range of ecosystem functional traits, the higher the quality of ecosystem services and the more stable it is." However, with the pollution and destruction of the environment, the development of the economy and the appetite of human beings, the species on the earth are rapidly decreasing. "At present, the biological species in the world are disappearing at a rate of dozens of species per day, which is a huge loss of the earth's resources, and the disappearing species will also cause other species to disappear through the food chain." Therefore, the revision of China's Wildlife Protection Law can be described as a powerful measure to effectively implement the United Nations Convention on Biological Diversity to protect biodiversity. The intensification of ecological and environmental risks "also requires scientific criminal mechanisms to strengthen the prevention of violations of biodiversity in advance, and appropriately move forward the punishment point and criminal law defense line for acts that damage the environment and biodiversity, so as to prevent acts of damage to biodiversity in the bud." The Criminal Law Amendment (XI) is timely linked to the Wildlife Protection Law, criminalizing the indiscriminate consumption of terrestrial wild animals that naturally grow and reproduce in the wild environment, reflecting the strong protection of biodiversity and ecological civilization, and is an effective preventive legislation to protect biosecurity.
In short, the amendment to the Criminal Law (XI) amends the existing crimes of biosecurity, expands the scope of punishment of the crime of obstructing the prevention and control of infectious diseases in the Criminal Law, standardizes the administrative elements of the relevant crimes, adds provisions that the indiscriminate consumption of wild animals constitutes a crime, effectively protects public health and biological diversity, and plays an important role in the construction of human ecological civilization and the maintenance of biosecurity.
(2) Innovative breakthroughs in biosecurity crime legislation: Adding new crimes to protect biosecurity
Articles 38, 39 and 43 of the Criminal Law Amendment (XI) add three new crimes related to biosecurity, which effectively respond to important issues of concern in the Biosecurity Law, such as the safety management of human genetic resources, the governance of misconduct in biological science and technology research, and the prevention of invasive alien species to ensure biodiversity. "In order to safeguard national security and biosecurity, prevent biological threats, and link with the Biosecurity Law, the draft amendment adds three types of criminal acts: illegal human gene editing and embryo cloning; crimes that seriously endanger the security of national human genetic resources: crimes of illegal disposal of invasive alien species. During the group deliberations, many members put forward perfect opinions on these new crimes. "The amendment to biosecurity crimes in the Criminal Law Amendment (XI) is of great epochal significance in responding to the challenges of criminal legislation in the era of science and technology in a timely manner.
Article 38 of the Criminal Law Amendment (XI) stipulates that "if a new article is added after article 334 of the Criminal Law as one of article 334: Whoever, in violation of the relevant provisions of the State, illegally collects our nation's human genetic resources or illegally transports, mails, or carries our nation's human genetic resources materials out of the country, endangers public health or the public interest, and if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined or fined individually; ”。 Article 334 of China's Criminal Law is the crime of illegally collecting, supplying blood, making and supplying blood products, and one of the new articles 334 is to stipulate that acts that seriously endanger the security of national human genetic resources are crimes. Article 39 provides: "A new article is added after article 336 of the Criminal Law as one of article 336: If a gene-edited or cloned human embryo is implanted into a human body or animal, or a gene-edited or cloned animal embryo is implanted into a human body, if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; if the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined." "Article 336 of China's Criminal Law is the crime of illegal medical practice, and one of the new articles 336 is on the basis of the original crime of illegal medical practice, adding provisions that engaging in human gene editing, embryo cloning and other acts constitute a crime. Article 43 stipulates that a new article shall be added after article 344 of the Criminal Law as one of article 344: "Whoever, in violation of State regulations, illegally introduces, releases or discards invasive alien species, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined or fined alone." "Article 344 of China's Criminal Law stipulates the crime of endangering plants under national key protection, and one of the new articles 344 is to add provisions for illegally introducing, releasing or discarding invasive alien species in addition to the original crime of endangering plants under national key protection.
The legislative model of the above three articles on crimes is all implicit, that is, "the sub-provisions of the criminal law only describe the characteristics of criminal acts, and there are no clear provisions on the crimes of specific crimes, and it is necessary to abstract and summarize the corresponding names according to the crimes provided for in the criminal law.". The use of implicit sub-rule provisions also depends on whether the description of the guilt is a simple charge, a statement of the charge, or a citation of the charge. The above-mentioned articles 38 and 39 clearly use the description of the crime, that is, the crime that describes the constituent elements of the crime in detail, and "it is much more difficult to summarize the state of the crime to determine the appropriate crime than to summarize the crime for other crimes". When stating the charges and determining the charges, it is particularly necessary to pay attention to the scientific nature of the determination of the charges. To achieve the scientific determination of the crime, first of all, it is necessary to make the finalized crime accurately reflect the essence of the crime, for this reason, we should adopt the "generalization method" plus the "screening method", "the essential characteristics of the crime as the core to determine the crime, and can not take the secondary, non-essential characteristics of the criminal act as the core to determine the crime." "To this end, the offences under articles 38 and 39 of the Criminal Law Amendment (XI) shall be determined on the basis of the jurisprudence of the above offences. According to article 38, the essential feature of this crime is "illegal collection of human genetic resources of our country or illegal transportation, mailing, or carrying out of the country of human genetic resources materials", according to the prompts of this article, four acts such as human genetic resources and collection can be screened out as the key words of this crime, for this reason, the crime of article 38 of the Criminal Law Amendment (ELEVEN) can be summarized as the crime of illegal collection, transportation, mailing, and carrying of human genetic resources. For the above-mentioned crimes, according to the relevant provisions of the Supplementary Provisions on the Enforcement of the < criminal law of the People's Republic of China > Determination of Crimes (VII) (hereinafter referred to as the "Supplementary Provisions on Crimes (VII)") promulgated by the Supreme People's Court and the Supreme People's Procuratorate on February 26, 2021, the finalized crimes are the crimes of illegally collecting human genetic resources and smuggling human genetic resources materials. The author believes that the "generalization method" plus the "screening method" in theory to describe the type of behavior in detail is more scientific and accurate in determining the crime, while the "Supplementary Provisions on Crimes (VII)" obviously merges the behavior of "illegally transporting, mailing, and carrying China's human genetic resources materials out of the country" into "smuggling human genetic resources materials", which is relatively more streamlined, and the two have their own advantages and disadvantages. According to article 39, the essential characteristic of the crime is "to implant gene-edited or cloned human embryos into human or animal bodies, or to implant gene-edited or cloned animal embryos into human bodies", and according to these descriptions of essential characteristics, the key words of this crime may be screened out as gene editing, embryo cloning, and other related illegal acts before applying the general law, for this reason, the crime of article 39 of the Criminal Law Amendment (XI) can be determined as the crime of illegally engaging in human gene editing and cloning embryos. According to the relevant provisions of the Supplementary Provisions on Crimes (VII), the crime was finally determined to be the crime of illegal implantation of gene editing and embryo cloning. The author believes that although on the surface, the crime of illegal implantation of gene editing and embryo cloning identified in the Supplementary Provisions on Crimes (VII) covers the keywords of "illegal", "implantation" and "gene editing and cloning of embryos" in this crime, it is not difficult to find out in the specific analysis of the meaning of the crime that "implantation" was originally modified by "human body" or "animal body", "gene editing and cloning embryos" is the object implanted in the human body or animal body, and the "implantation" is placed before "gene editing and cloning embryos" in the crime. Giving the impression that something is "implanted" into "gene editing and cloning embryos", there is a suspicion of confusing the implanted object and the implanted object, resulting in incongruity between the description of the crime and the crime, and it is easy to produce ambiguity. Therefore, it is more reasonable to determine the crime as illegally engaging in human gene editing and embryo cloning according to doctrinal analysis.
Section 43 of the Criminal Law Amendment (XI) adopts simple offences. Theoretically, a simple indictment is basically equivalent to a crime, or "a simple indictment is a hint of a crime." According to whether the description of the constituent elements of the crime exceeds the generalization of the crime, the simple crime can be divided into pure simple crime and pure simple crime, and what is not exceeded is a pure simple crime, and what is exceeded is an impure simple crime. For the determination of crimes for purely simple crimes, the method of adoption is generally adopted, that is, the provisions of the sub-provisions of the Criminal Law are finally and directly used as offences without change. For example, article 308 of China's Criminal Law, which states that "whoever retaliates against a witness shall be sentenced to fixed-term imprisonment of not more than three years...", this provision is a purely simple crime, and the crime can be directly determined as the crime of retaliation against the witness. For the determination of offences that are not purely simple crimes, the method of adoption plus screening is adopted, that is, the description of the sub-provisions and the selection of the constituent elements are used. For example, article 172 of China's Criminal Law, which reads, "Whoever holds or uses counterfeit currency knowing that it is a forged currency, and if the amount is large, shall be sentenced to imprisonment for not more than three years...", which is not a pure simple crime, and the crime can be determined as the crime of possessing and using counterfeit currency. Article 43 of the Criminal Law Amendment (XI) stipulates that "if an invasive alien species is illegally introduced, released or discarded in violation of state regulations, if the circumstances are serious, it shall be sentenced to fixed-term imprisonment of not more than three years..." Is a simple crime that is not pure, which includes both descriptions of the essential characteristics of the crime of "illegal introduction, release or discarding of invasive alien species" and descriptions of non-essential characteristics of "violation of state regulations" and "serious circumstances". Adopt the method of adoption and screening, adopt the key word "invasive alien species" in this article, screen the word "illegal" in "illegal introduction, release or discard" and summarize "introduction, release or discard" as the word "disposal", for this reason, the crime in article 43 of the Criminal Law Amendment (XI) can be summarized as the crime of illegal disposal of invasive alien species. In response to the above-mentioned crimes, the crime finalized in the Supplementary Provisions on Crimes (VII) is the crime of illegally introducing, releasing and discarding invasive alien species, which is obviously a direct reference to the manner of conduct described in the crime. The author believes that the doctrinal crime of illegal disposal of invasive alien species is a summary of the "introduction, release or abandonment" in the simple crime, which will not only not produce ambiguity, but also make the statement of the crime more concise, while the crime of illegal introduction, release and abandonment of invasive alien species determined by the Supplementary Provisions on Crimes (VII) directly quotes the content of the law and describes the mode of conduct more accurately. Therefore, both are reasonable.
In summary, the three new biosecurity crimes added to the Criminal Law Amendment (XI) are the crimes of illegally collecting human genetic resources and smuggling human genetic resources materials, illegal implantation of gene editing and cloning embryos, and illegal introduction, release and discarding of invasive alien species. Whether it is the above-mentioned amendments to the existing provisions and crimes of biosecurity crimes, or the newly added crimes of biosecurity crimes, "these intensive amendments not only greatly fill the normative loopholes in the field of public health security, but also optimize the structure of the crimes, reasonably expand the objects and scope of the criminal law system, so that the provisions on public health security crimes will not lag behind."
III. The "Criminal Law Amendment (XI)" biosecurity crime legislation effectively resolves the crisis of the legitimacy of the positive criminal law concept
In order to safeguard national security and biosecurity and prevent biological threats, the Criminal Law Amendment (XI) has made amendments to biosecurity crimes, thereby improving the criminal law governance of biosecurity risk prevention. So, is such a provision a positive or negative manifestation of a criminal law? Furthermore, how should the relevant legislation on biosecurity offences be viewed? If it is said that "preventive legislation is still in the local field and has not comprehensively 'invaded' the traditional criminal law system", then biosecurity crimes are the embodiment of the positive preventive criminal law concept in the local field. Combined with the specific provisions of the Criminal Law Amendment (XI) on biosecurity crimes and the nature of the positive preventive criminal law concept, the legislation on biosecurity crimes in the Criminal Law Amendment (XI) reflects a positive criminal law concept rather than a negative criminal law view, and at the same time, this positive criminal law view is a limited positive criminal law view, which is generally rational and pertinent. Although "the current over-reliance on the action logic of preventive legislation to take the lead in responding also reveals deep-seated problems such as insufficient follow-up of theoretical systems", there is no such problem in biosecurity crime legislation, it is the result of scientific support with other laws and regulations, and it is also the result of the follow-up of relevant theories.
(1) The "Criminal Law Amendment (XI)" biosecurity crime legislation conforms to the overall national security concept
The "Criminal Law Amendment (XI)" biosecurity crime legislation effectively conforms to the overall national security concept, implements the principle of active prevention of biosecurity risks, and responds to the irreversibility of biosecurity hazards, which is an important embodiment of China's efforts to cope with biosecurity risks by building a complete system of biosecurity laws and regulations.
The sudden global COVID-19 epidemic in 2020 has triggered biosecurity issues closely related to biotech risks such as epidemic prevention and control and risk monitoring, and biosecurity issues have become one of the major threats to the survival and development of all mankind, and all countries in the world attach great importance to biosecurity. General Secretary Xi Jinping pointed out that "from the perspective of protecting people's health, ensuring national security, and safeguarding the country's long-term peace and stability, we should incorporate biosecurity into the national security system, systematically plan the construction of the national biosecurity risk prevention and control and governance system, comprehensively improve the national biosecurity governance capacity, and accelerate the construction of a national biosecurity legal and regulatory system and institutional guarantee system", to this end, "it is clear that biosecurity is an important part of national security, and the overall national security concept should be implemented to maintain national biosecurity" has become the Biosecurity Law. Important content of development.
The formulation of the Biosecurity Law has opened up the road to systematization and specialization of China's biosecurity laws and regulations. At a time when biosecurity risks are becoming increasingly prominent, how to give full play to the role of the final guarantee law, link with laws such as the Biosecurity Law as a precursor law, build a complete biosecurity regulatory system, and rationally and fully deploy and implement the national biosecurity strategy has become an important issue facing criminal legislation in the era of activation. To this end, when the National People's Congress revised the Criminal Law Amendment (ELEVEN), it clearly stated that it is necessary to implement the state's requirements for "criminal law governance and protection in the fields of food and drug safety, ecological environment, public health security", "to adapt to changes in the domestic and international situation and the new situation and new struggle needs currently facing, and to further connect the formulation and revision of laws related to epidemic prevention and control, biosecurity, and intellectual property rights, etc., and to make corresponding adjustments to the Criminal Law to enhance the systematicness, integrity, and legal norms. Synergy". Therefore, after the formulation of the Biosecurity Law, when a series of laws related to public health are being revised and introduced, and after the Civil Code of Our Country has also increased the protection of biosecurity such as human genes, if the Criminal Law does not adjust the constituent elements of existing crimes and does not add new crimes, then it will not be possible to achieve a complete legal normative system at the level of biosecurity guarantees, and there will be a pre-law without follow-up guarantee law, and there will be a width of administrative civil penalties but no criminal punishment, if so, Then, as a national security strategy level, biosecurity protection is bound to be difficult to implement. The Criminal Law Amendment (XI) strengthens the criminal governance of biosecurity, adjusts the provisions on existing biosecurity crimes, and adds some new types of biosecurity crimes, which is an important measure to protect biosecurity from the level of national security strategy based on the overall national security concept.
With the rapid development and application of high technology, especially biotechnology, the international community has long realized the need for a new concept to deal with risk prevention, which is the principle of risk prevention. The Principle of Risk Prevention "is a preventive mechanism for the long-term potential risks of scientific and technological innovation products to prevent potential risks to human health, environmental protection and biodiversity that may arise in the absence of specific scientific evidence". By citing the necessary scientific evidence, we can resolve and prevent future risks in advance. This principle is widely applied in Sweden, Germany, Brazil, the United States, Russia and other countries. Article 12b of the World Charter for Nature of the United Nations General Assembly of 28 October 1982 stipulates that "special precautions shall be taken to prevent the release of radioactive or toxic wastes" and article 13 stipulates that "measures aimed at preventing, controlling or limiting natural disasters, pests and diseases shall address the causes of such disasters and shall avoid harmful side effects on nature". These provisions are considered to be the first recognition of the precautionary principle. Article 15 of the Rio Declaration on Environment and Development of the United Nations Conference on Environment and Development of 14 June 1992 stipulates that "in order to protect the environment, States shall take a wide range of preventive measures in accordance with their capacities". Where serious or irreparable damage is likely to be caused, the lack of adequate scientific certainty cannot be used as a justification for delaying the adoption of costly measures to prevent environmental degradation", thus further establishing the legal status of the precautionary principle in the treatment of social risks. The Convention on Biological Diversity, signed and adopted at the United Nations Environment and Development Conference on 5 June 1992, once again stressed the importance of "taking note of the importance of anticipating, preventing and addressing the root causes of serious loss or loss of biological diversity". In short, from the 1970s to the present, "the precautionary principle has gradually been enshrined in national laws and international treaties in the fields of the environment, food safety, public health, trade, etc., as an important principle, strategy and measure for risk prevention and protection of the public interest or sustainable development" As a state party to the above-mentioned international treaties, China has implemented the precautionary principle in its domestic law and has become an important part of relevant domestic legislation. To this end, Article 5 of the Environmental Protection Law of the People's Republic of China (hereinafter referred to as the "Environmental Protection Law") of April 24, 2014 stipulates that "environmental protection adheres to the principles of giving priority to protection, putting prevention first, comprehensive management, public participation, and responsibility for damage." Article 3 of the Biosecurity Law clearly stipulates that "biosecurity is an important part of national security." The maintenance of biosecurity shall implement the overall national security concept, make overall plans for development and security, and adhere to the principles of people-oriented, risk prevention, categorical management, and coordination." Through the provisions of these laws, the principle of prevention has become a general principle with legal status in the field of environmental biosafety risks in China.
The focus of the positive criminal law concept is also on preventing the occurrence of crime, but it does not apply to every area of crime. For example, for natural offenders such as homicide and robbery, it is more conducive to the deterrent effect of criminal law to take the consequences of infringement of legal benefits as a benchmark. However, for crimes in the biological field, criminal sanctions have no practical effect if the consequences of legal infringement have already occurred, because "as a new type of safety problem with organisms as the medium and biotechnology as the most important carrier, biosafety also has the irreversibility of harmful consequences, that is, once it occurs, it will be irreversible and the damage caused cannot be repaired." However, the precautionary principle in the field of biosafety has not been well implemented in China, and previous laws such as the provisions on the precautionary principle of the Environmental Protection Law are considered to be "mainly aware of its deterministic and quantifiable damage and its risks, which are essentially the principle of 'damage prevention' rather than the principle of 'risk prevention' based on scientific uncertainty." "As for the newly established precautionary principle of the Biosafety Law, since it is a new law, the implementation and application of this principle has not yet begun. In order to better implement the risk prevention principle in the field of biosecurity from the perspective of the overall national security concept, and give full play to the risk prevention role of preventive legislation under the guidance of the positive criminal law concept, the biosecurity crime legislation of the Criminal Law Amendment (XI) is consistent with the position of the principle of prevention in the field of biosecurity from the perspective of the overall national security concept, and is the embodiment of the era of implementing the national strategy for biosecurity.
In short, the principle of prevention has long been applied to the protection of biosecurity in the international community, and the overall national security concept requires the establishment of the principle of risk prevention of security protection. The "Criminal Law Amendment (XI)" biosecurity crime legislation implements the principle of prevention of biosecurity risks, responds to the irreversibility of biosecurity hazards, and is an important embodiment of China's efforts to cope with biosecurity risks by building a complete system of biosecurity laws and regulations.
(2) The "Criminal Law Amendment (XI)" biosecurity crime legislation makes up for the shortcomings of China's criminal law
Biosecurity has a broad and narrow sense, in the past, the biosecurity protected by China's criminal law was mainly aimed at a broad sense, the real sense is that biosecurity in the narrow sense has not been included in the scope of protection by China's criminal law, and the Criminal Law Amendment (XI) for the first time includes biosecurity in the narrow sense, making up for the lack of China's criminal law.
Biosafety includes the concept of Biosafety and Biosecurity, Biosafety is the meaning of safeyinbiotechnology, that is, "security in biotechnology"; Biosecurity, is the meaning of biological security, that is, "the guarantee of biosecurity", the former can be said to be a generalized biosecurity, the latter is a narrow sense of biosecurity. In the past, China's biosecurity crime legislation was mainly aimed at Biosafety, that is, in a broad sense, and more of a passive position to maintain biosecurity. The Criminal Law Amendment (XI) makes China's biosecurity crime legislation become Biosecurity legislation for the first time, that is, legislation in the narrow sense, from passively maintaining biosecurity to actively defending biosecurity, making up for the lack of biosecurity legal benefits guaranteed by China's criminal law in the past.
Biosafety refers to "preventing the harm or potential risks caused by various factors related to life to society, economy, human health and the ecological environment", it is a collective term for "biosafety and hiosecurity", "but biosafety emphasizes the prevention of unintentional bio-caused biotechnology and microbial bio-hazards, and biosecurity refers to proactive measures to prevent intentional, such as the theft and abuse of biological hazards caused by biotechnology and microbial dangerous substances" 。 Obviously, biosafety is more from the level of disease prevention and epidemic prevention, while biosecurity is more from the prevention level of biological weapons and biological warfare. In other words, the former defines biosafety more at the level of natural biotechnology, while the latter defines biosecurity more at the level of deliberately creating biological threats. Before the Criminal Law Amendment (XI), China's criminal law already had a criminal system for biosecurity crimes, but they were more from the biosafety level, that is, the broad biosecurity level of criminal legislation.
There are two levels of legislation on existing biosecurity criminal legislation: direct and indirect. Direct biosecurity crime legislation refers to crimes directly provided for for the purpose of biosecurity protection, which mainly focus on two major types of crimes: crimes against public health and crimes of damaging the protection of environmental resources. Specifically, it is the 10 crimes in Articles 330 to 337 of Chapter 6 of the Criminal Law of China, "Crimes of Obstructing Social Management Order", Section 5 "Crimes of Endangering Public Health", and 15 crimes in Articles 338 to 345 of Section 6 "Crimes of Damaging the Protection of Environmental Resources". The former mainly prevents the threat of infectious diseases to human health and safety, and the latter mainly deals with the behavior of polluting and destroying environmental resources and endangering ecological security. At the same time, there are also a number of biosecurity crime legislation distributed in other chapters of the Criminal Code, which are indirect biosecurity legislation. The so-called indirect legislation on biosecurity crimes refers to crimes that are aimed at protecting other legal interests but at the same time have the function of preventing biosecurity risks, which are mainly concentrated in crimes endangering public security, the crimes of producing and selling counterfeit and shoddy goods, and the crimes of dereliction of duty. Specifically, the first category is the crime of preventing bioterrorism and the threat of biological weapons, including: the crime of releasing dangerous substances in articles 114 and 115 of the Criminal Law of our country, the crime of endangering public safety by dangerous means, the crime of illegally manufacturing, buying, selling, transporting and storing dangerous substances under article 125, the crime of stealing and snatching dangerous substances under article 127, the crime of illegally carrying dangerous goods to endanger public security under article 130, the crime of assisting terrorist activities in article 120 bis, and the crime of preparing to carry out terrorist activities under article 120 bis. The second category is drug harm and food safety crimes, including the crime of producing, selling and providing counterfeit drugs under article 141 of china's Criminal Law, the crime of producing, selling and providing inferior drugs under article 142, the crime of producing and selling food that does not meet safety standards under article 143, the crime of producing and selling poisonous and harmful food under article 144 of article 144 of the Criminal Law Amendment (ELEVEN), and the crime of obstructing the management of drugs in article 142 of China's Criminal Law added in article 7 of the Criminal Law Amendment (ELEVEN). The third category is the crime of preventing the invasion of alien species and maintaining biosecurity, including article 412 of China's Criminal Law for the crime of favoritism fraud, article 413 of animal and plant quarantine favoritism fraud, and animal and plant quarantine dereliction of duty. The fourth category is the crime of dereliction of duty in the prevention and control of infectious diseases and food safety, including the crime of illegally issuing forest logging permits under article 407 of China's Criminal Law, the crime of dereliction of duty in environmental supervision under article 408, the crime of dereliction of duty in the supervision of food and drugs in article 408,409 the crime of dereliction of duty in the prevention and control of infectious diseases, the crime of illegally approving the expropriation, requisitioning, and occupation of land under article 410, and the crime of illegally transferring the right to use state-owned land at a low price.
China's direct biosecurity crime legislation, that is, the crime of endangering public health and the crime of damaging the protection of environmental resources, basically belongs to Biosafety, that is, biosecurity legislation in a broad sense, such as medical malpractice, environmental pollution, etc., although these crimes have intentional crimes such as illegal organization blood sales, there are also negligent crimes such as medical malpractice, and even whether their subjective aspects are intentional or negligent, such as environmental pollution crimes, but because of this, they are only " Safetyinbiotechnology", that is, the problem of "safety in biotechnology", lacks human factors and evil uses biotechnology to threaten human life and health and create biological threats, so "biosafety refers more to the relatively passive maintenance of biological security state", and the crimes of previous criminal legislation are more ex post facto punishment, and there is a lack of criminal governance for deliberately created biosecurity crimes.
Different from the traditional criminal legislation that passively maintains biosecurity, in the context of the rapid development of biotechnology leading to the threat to the biosecurity of all countries, ensuring biosecurity has become a strategic task at the national security level of all countries, enhancing biosecurity defense means and risk awareness, and improving national biosecurity defense capabilities, which has become the pursuit goal of all countries, including China. The concept of biosecurity at the biosecurity level should emerge from time to time, "biologicalsecurity" is "biosecurity guarantee", because security itself has the meaning of reliably guaranteeing security, and this level of protection is obviously not sufficient to deal with passively. Unlike the passive maintenance of biosecurity at the Biosafety level, "Biosecurity is proactively taking measures to deal with possible biological threats." How to protect and make good use of the "life manual" of human genetic data, maintain human dignity, ensure the safety of life, ensure the purity of the "secret of life" of human genes, protect and respond to the invasion of alien species, and protect the diversity of organisms have all become the contents of the national biosecurity strategic plan to actively seek measures. In particular, in the face of the development of biological weapons and bioterrorism activities that may occur more in the past, it has become a general trend for states to adopt active defense strategies to actively respond to biosecurity.
In short, China's previous crime system of biosecurity crimes has a positive significance in maintaining the traditional Biosafety, that is, "security in biotechnology" or biosecurity in a broad sense, but, combined with the content of the new law of the Biosecurity Law, the existing criminal law on biosecurity crimes still lacks pertinence and defense, and cannot meet the actual needs of biosecurity, that is, "biosecurity guarantee" or biosecurity governance in a narrow sense. The Criminal Law Amendment (XI) timely docks with the Biosecurity Law, responds to major biosecurity incidents such as the outbreak of the new crown epidemic, gene-edited babies, and invasion of alien species, and establishes three new types of biosecurity crimes at the narrow level, which to a certain extent meets the institutional needs and practical needs of the state to deal with biosecurity risks.
(3) The Criminal Law Amendment (XI) Biosecurity Crime Legislation is responsive and preventive legislation
The three new types of biosecurity crimes added in the Criminal Law Amendment (XI) provide criminal law guarantees for preventing future biosecurity risks, and effectively respond to practical needs, they are both preventive legislation, but also responsive legislation, preventive legislation rooted in judicial practice, and their preventive position is rational and pertinent, neither positive nor radical. The establishment of the crimes of illegal collection of human genetic resources and smuggling of human genetic resources and materials and the illegal introduction, release and discarding of invasive alien species is legislation that implements the principle of prevention. Biosecurity is related to the survival of human beings and the healthy development of the country, and the safety problems caused by biological factors have always been a huge challenge facing mankind. Especially since the beginning of the 21st century, "with the continuous acceleration of the process of globalization and the rapid development of subversive biotechnologies such as gene editing and synthetic biology, the threat situation of biosecurity in the world has become more and more severe, mainly manifested in the frequent occurrence of emerging infectious diseases, the increasingly severe invasion of alien species, the hidden dangers of laboratory biosecurity, the increasing risk of biotechnology misuse, the increasing threat of bioterrorism and the loss of human genetic resources." Taking the protection of human genetic resources as an example, according to Article 2 of the Regulations of the People's Republic of China on the Administration of Human Genetic Resources (hereinafter referred to as the Regulations on the Administration of Human Genetic Resources) promulgated by the State Council on May 28, 2019, "Human genetic resources include human genetic resources materials and human genetic resources information." Human genetic resource materials refer to genetic materials such as organs, tissues, and cells that contain human genomes, genes, and other genetic materials. Human genetic resources information refers to data and other information materials generated by the use of human genetic resource materials. "Human genetic resources contain the essence of human life, and its improper use not only violates human dignity at the level of value, but also threatens human existence in a fundamental sense." Because cracking the code of human genetic resources not only means that human life has new possibilities, but also brings about a greater human crisis. Criminals can use human genetic information to create biological weapons and launch biological terrorist attacks, and the high-end threshold of biotechnology greatly weakens the ability of human beings to cope with such crises. In the face of such a biosecurity risk that is harmful and difficult to deal with after the fact, active prevention through criminal law is undoubtedly the most secure and necessary way at present. The Criminal Law Amendment (XI) moderately criminalizes the illegal collection of Human genetic resources of our country or the illegal transportation, mailing, and carrying of materials of Human genetic resources out of the country, which does not mean that the above-mentioned illegal collection, transportation, mailing, and carrying out of the country have caused damage to human genetic resources themselves, but is to prevent the risk of technological abuse such as illegal biological experiments and the possible threat to China's biosecurity by using the genetic resources in the future, because the simple collection, transportation, mailing, Carrying does not involve the deciphering of human genetic resource information, it only increases the risk of improper use of human genetic resource information. From a logical point of view, this kind of legislation is actually the criminalization of legal interest-related acts, and it is the criminal law that raises the regulation of "legal-interest-related behaviors that make legal benefits dangerous to the stage before the occurrence of specific dangers", although it has not yet touched the core of legal interests, but from the perspective of the degree of risk and the necessity of prevention, this criminalization is reasonable. At the same time, it is also classified as "future-oriented criminal legislation" that "attempts to determine the punishability of certain modes of conduct before the development of technology", although at the time of the birth of legislation these acts were rarely occurred in practice or technically difficult to achieve effectively.
Similarly, the Criminal Law Amendment (XI) adds the crime of illegally introducing, releasing and discarding invasive alien species, which is also based on the prevention of the risk of invasive alien species. In the past, China's understanding of ecological environment and biodiversity protection was not high, and the harm of species invasion was not enough, "There is a certain degree of blindness in the introduction of foreign species in China: 50% of invasive alien plants are introduced as pasture or feed, ornamental plants, fiber plants, medicinal plants, vegetables, and lawn plants; 25% of invasive alien animals are introduced for breeding, ornamental and biological control. The introduction and neglect of alien species may also lead to the escape of alien species into the natural environment, resulting in potential environmental disasters." A large number of survey studies have shown that the blind introduction of alien species not only can not bring about an increase in the number of species, but also causes serious damage to the ecosystem due to the lack of natural enemies in the place of introduction and the encroachment of indigenous organisms, "alien species are the most important factor leading to biodiversity loss, and have become one of the serious global environmental problems.". It is precisely for this reason that the Agricultural Law of the People's Republic of China (hereinafter referred to as the Agricultural Law), the Law of the People's Republic of China on the Quarantine of Animals and Plants Entering and Leaving China (hereinafter referred to as the Law on the Quarantine of Animals and Plants Entering and Leaving the Country), the Biosecurity Law and other legal norms have been formulated successively to regulate the introduction of species from different levels. What is more worth reflecting on is that the damage to biodiversity and ecological environment caused by species invasion is often irreversible once it occurs. In the face of such a high ecological and environmental cost, it is obvious that it cannot be punished only through administrative punishment. In this sense, before the damage has occurred or has not deteriorated, it is necessary and reasonable for the Criminal Law to add the crime of illegally introducing, releasing and discarding invasive alien species to actively prevent biosecurity risks.
The biosecurity legislation of the Criminal Law Amendment (XI) is not entirely preventive, and there is also responsive legislation that responds to the urgent requirements of judicial practice, which is typically represented by the crime of illegal implantation of gene editing and embryo cloning in article 39 of the Criminal Law Amendment (XI) in response to scientific research misconduct. "Human embryo genetic experiments take human embryos or pre-embryos as experimental objects, and there are types of genetic testing, genetic diagnosis, gene screening, gene editing (genetic modification) and other types in technology, which have triggered a series of ethical, social and legal disputes." To this end, article 34 of the Biosafety Law stipulates that "the State shall strengthen the safety management of biotechnology research, development and application activities, and prohibit the undertaking of biotechnology research, development and application activities that endanger biosafety, such as endangering public health, damaging biological resources, destroying ecosystems and biodiversity." Engaging in biotechnology research, development and application activities shall comply with ethical principles. Article 109 of China's Civil Code also stipulates that "medical and scientific research activities related to human genes, human embryos, etc., shall comply with laws, administrative regulations and relevant national provisions, and shall not endanger human health, shall not violate ethics and morality, and shall not harm the public interest." "These legislative provisions and theoretical controversies are precisely from the promotion and coercion of gene editing baby cases." In the case of He Jiankui and others illegally practicing medicine, the court ruled that He Jiankui and others "hastily applied gene editing technology to human assisted reproductive medicine, disrupted the order of medical management, the circumstances were serious, and their behavior has constituted the crime of illegal medical practice". But in fact, "strictly according to the analysis of the constituent elements of the criminal law, the behavior of He Jiankui and other three people lacks corresponding crimes to regulate in the criminal law, and it is actually difficult for human gene editing research to be included in the criminal law through the crime of medical malpractice and the crime of illegal medical practice." The reason why the court "finally convicted and sentenced for the crime of illegal medical practice is that through the role of the last line of defense of the criminal law, the consensus of the medical community that scientific and technological workers 'do not violate the bottom line of scientific research ethics' can be practiced." This judgment highlights the importance and urgency of promoting the establishment of scientific research ethics from the perspective of the final guarantee law of criminal law, rather than applying the illegal medical practice crime or other crimes that do not really cover the editing of infants, it is better to directly stipulate that the act of editing babies and other acts is a new crime. Therefore, the new crimes of illegal implantation of gene editing and embryo cloning in the Criminal Law Amendment (XI) can be described as a typical example of scientific legislation.
"It is the trend of the times for the Criminal Law to respond to scientific research misconduct, and it is of great significance to 'criminalize' scientific research misconduct with greater social harm, and to curb related criminal acts and maintain the sustainable development of national scientific and technological forces." In short, the criminalization of scientific research misconduct such as human gene editing and other acts of biosecurity is no longer preventive legislation with a positive criminal law concept, but a reasonable reflection of the relatively passive criminal legislation under the strong demand of judicial practice and the pressure of other laws.
(4) The three new crimes of biosecurity crimes in the Criminal Law Amendment (XI) all strictly abide by the principle of proportionality
The three new crimes of biosecurity crimes in the Criminal Law Amendment (XI) have established "serious circumstances" as the criterion for criminalization, and while playing a preventive role in biosecurity crimes, they avoid the result of "once the act is committed, it constitutes a crime", which provides a legislative basis for reasonably delineating the scope of conviction and punishment for biosecurity crimes, so it is a rational and positive prevention.
Biosafety protection and biotechnology development are a pair of basic categories at the intersection of jurisprudence and biological science, and the coordination and balance of the two is the central issue of whether this emerging legal topic can be effectively developed, and it is also the main line running through the biosecurity crime legislation of the Criminal Law Amendment (XI). The Criminal Law Amendment (XI) adds three new crimes to deal with the biosecurity risks posed by serious endangering the security of human genetic resources, illegal use of biotechnology, and illegal disposal of invasive alien species, and expand the scope of protection of biosecurity in the Criminal Law. Criminalization of these three types of conduct is based on risk-prevention considerations, but this criminalization "does not prohibit damage per se, but rather the possibility of harm , which, when committed , is not (and is not) transformed into a real hazard". Therefore, its criminalization basis is not as solid and reliable as that of the real offender, and the theoretical questioning of the risk prevention offender has never stopped.
From a deeper level, the high uncertainty of risk and the trend of the times of biotechnology forward determine that the prevention of biosecurity risks in criminal law needs to find a reasonable balance, which can neither be ignored and allowed to flood the risk, nor can it be over-prevented and lead to excessive criminalization. In view of the uncertainty of risk, criminal law as a last resort needs to be cautious when touching on risk prevention, and excessive risk prevention will face legitimate questions, because imposing penalties for acts that are not harmful or imposing excessive penalties on acts with a low degree of harm will "aggravate the proliferation of penalties, it will damage the credibility of criminal law, and weaken the general deterrent nature of criminal law." In order to avoid the excessive prevention and achieve a reasonable balance between biosafety protection and the development of biotechnology, the three new crimes added to the Criminal Law Amendment (XI) stipulate the element of "serious circumstances", which has the important function of reconciling the "legal-legal relationship" and restricting criminalization.
In terms of legislation, the setting of the "serious circumstances" element helps to avoid falling into the dilemma of borderless criminal law that "once the act is committed, it constitutes a crime". Criminal law has its boundaries, and punishment is not necessary when the termination of an act "can be effectively achieved at a lower cost". Species invasions can exist in any era, but in the past, humans did not fully understand its harmfulness, resulting in criminal law not regulating such acts. When human beings have a deep understanding of its harmfulness, it is of course necessary to regulate this kind of behavior that may seriously infringe on the legal interests of biosecurity through stricter criminal law. However, while there is a deeper understanding of the harm of species invasion, it is also necessary to pay attention to the limited nature of criminal law to solve this problem, as well as the new harm brought about by the excessive application of criminal law. The harm of illegal use of human genetic resources and illegal gene editing has become more and more serious with the development of biotechnology, and the criminalization of acts that were not serious in the past but serious in the present is based on the changes in the times of the degree of infringement of legal interests. However, it should also be noted that the forward development of biotechnology is inevitable, and in many cases, its development can benefit human beings themselves, and it is not appropriate to look at their disadvantages without looking at their benefits, and it is not appropriate to prohibit them without screening. It can be seen from this that the Criminal Law sets up the "serious circumstances" element to limit the scope of establishment of biosecurity crimes, which is similar, and the Criminal Law Amendment (XI) adds the crime of illegally introducing, releasing and discarding invasive alien species, which is also based on the prevention of the risk of invasive alien species as the main logic. In the past, China's understanding of ecological environment and biodiversity protection was not high, and the harm of species invasion was not enough, "There is a certain degree of blindness in the introduction of foreign species in China: 50 invasive alien plants are introduced as pasture or feed, ornamental plants, fiber plants, medicinal plants, vegetables, and lawn plants; 25 invasive alien animals are introduced for breeding, ornamentation, and biological control." The introduction and neglect of alien species may also lead to the escape of alien species into the natural environment, resulting in potential environmental disasters." A large number of survey studies have shown that the blind introduction of alien species not only can not bring about an increase in the number of species, but also causes serious damage to the ecosystem due to the lack of natural enemies in the place of introduction and the encroachment of indigenous organisms, "alien species are the most important factor leading to biodiversity loss, and have become one of the serious global environmental problems.". It is precisely for this reason that the Agricultural Law of the People's Republic of China (hereinafter referred to as the Agricultural Law), the Law of the People's Republic of China on the Quarantine of Animals and Plants Entering and Leaving China (hereinafter referred to as the Law on the Quarantine of Animals and Plants Entering and Leaving the Country), the Biosecurity Law and other legal norms have been formulated successively to regulate the introduction of species from different levels. What is more worth reflecting on is that the damage to biodiversity and ecological environment caused by species invasion is often irreversible once it occurs. In the face of such a high ecological and environmental cost, it is obvious that it cannot be punished only through administrative punishment. In this sense, before the damage has occurred or has not deteriorated, it is necessary and reasonable for the Criminal Law to add the crime of illegally introducing, releasing and discarding invasive alien species to actively prevent biosecurity risks.
The biosecurity legislation of the Criminal Law Amendment (XI) is not entirely preventive, and there is also responsive legislation that responds to the urgent requirements of judicial practice, which is typically represented by the crime of illegal implantation of gene editing and embryo cloning in article 39 of the Criminal Law Amendment (XI) in response to scientific research misconduct. "Human embryo genetic experiments take human embryos or pre-embryos as experimental objects, and there are types of genetic testing, genetic diagnosis, gene screening, gene editing (genetic modification) and other types in technology, which have triggered a series of ethical, social and legal disputes." To this end, article 34 of the Biosafety Law stipulates that "the State shall strengthen the safety management of biotechnology research, development and application activities, and prohibit the undertaking of biotechnology research, development and application activities that endanger biosafety, such as endangering public health, damaging biological resources, destroying ecosystems and biodiversity." Engaging in biotechnology research, development and application activities shall comply with ethical principles. Article 109 of China's Civil Code also stipulates that "medical and scientific research activities related to human genes, human embryos, etc., shall comply with laws, administrative regulations and relevant national provisions, and shall not endanger human health, shall not violate ethics and morality, and shall not harm the public interest." "These legislative provisions and theoretical controversies are precisely from the promotion and coercion of gene editing baby cases." In the case of He Jiankui and others illegally practicing medicine, the court ruled that He Jiankui and others "hastily applied gene editing technology to human assisted reproductive medicine, disrupted the order of medical management, the circumstances were serious, and their behavior has constituted the crime of illegal medical practice". But in fact, "strictly according to the analysis of the constituent elements of the criminal law, the behavior of He Jiankui and other three people lacks corresponding crimes to regulate in the criminal law, and it is actually difficult for human gene editing research to be included in the criminal law through the crime of medical malpractice and the crime of illegal medical practice." The reason why the court "finally convicted and sentenced for the crime of illegal medical practice is that through the role of the last line of defense of the criminal law, the consensus of the medical community that scientific and technological workers 'do not violate the bottom line of scientific research ethics' can be practiced." This judgment highlights the importance and urgency of promoting the establishment of scientific research ethics from the perspective of the final guarantee law of criminal law, rather than applying the illegal medical practice crime or other crimes that do not really cover the editing of infants, it is better to directly stipulate that the act of editing babies and other acts is a new crime. Therefore, the new crime of illegal implantation of gene editing and embryo cloning in the Criminal Law Amendment (XI) can be described as a scientific legislation based on a rational understanding of biosecurity risks, so it has substantive legitimacy.
In terms of judicial theory, "serious circumstances" provide guidance for the formulation of relevant judicial interpretations in the future, and leave the necessary buffer space for judicial practice to explore the punishment rules for relevant crimes. For the above three biosecurity crimes, the Criminal Law Amendment (XI) does not make specific provisions on what constitutes "serious circumstances", and it is foreseeable that the "serious circumstances" in these three crimes need to be clarified in the form of judicial interpretation in the future, and the judicial interpretation will screen out the circumstances worthy of criminal punishment according to whether the acts are "serious circumstances", so as to decriminalize the minor circumstances and reasonably limit the criminal circle. Because the "serious circumstances" element has a certain degree of openness, judicial interpretations usually adopt the method of "enumeration + bottom-up" to describe its type, specifically, first listing the serious situations that are common and frequent in judicial practice, and then using expressions similar to "other serious circumstances" to carry out the bottom, thus forming a semi-specific and semi-open normative structure. This can not only provide a basis for judicial practice to handle relevant cases, but also play a role in judicially reasonably restricting the establishment of crimes. Because even if the "other serious circumstances" are open-ended, under the normative structure of the above-mentioned "enumeration + bottom", the interpretation of the bottom rule, that is, "other serious circumstances", should also adopt the same interpretation rules, that is, "other serious circumstances" should be equivalent to the harm of the listed situations, and the less harmful acts cannot be handled according to the relevant crimes.
In terms of interpretation, clarifying the "legal-legal relationship" through the "serious circumstances" element can make "interpretation or the development of the law can be embedded in the internal relationship of the legal system, and they can be coordinated with other norms", and in the process of coordination of the "legal-legal relationship", the path of reasonable restriction and interpretation of biosecurity crimes can also be clarified. The "serious circumstances" element set by the legislation on biosecurity crimes reflects the progressive relationship between administrative violations and criminal offenses in the field of biosecurity. The addition of three new biosecurity crimes in the Criminal Law is related to the inability of administrative means to regulate biosecurity risks to a certain extent, but this does not mean that when the Criminal Law adds biosecurity crimes, the regulation of the administrative law will retreat behind the scenes, but should reasonably determine the scope of their respective applications on the basis of clarifying the relationship between the two. "Serious circumstances" is an element that reflects the degree of infringement of legal interests, and reasonably interpreting the elements of "serious circumstances" is an important way to clarify the relationship between the two laws and properly regulate biosecurity risks. In the overall legal order, administrative law is the predecessor of the criminal law, which intercepts the previous illegal acts, "for the sanctions of illegal acts, if there are many measures feasible, it is advisable to use light penalties first, and only use heavy penalties when the purpose of deterrence cannot be achieved", according to which, for illegal collection of human genetic resources, smuggling of human genetic resources materials, illegal implantation of gene editing, cloning of embryos, and illegal introduction, release and discarding of invasive alien species, although it violates national regulations, if the circumstances are less serious, only the "" Pre-laws such as the Biosecurity Law and the Wildlife Protection Law can give administrative penalties without the need to use the criminal law.
In short, the three new crimes of biosecurity crimes in the Criminal Law Amendment (XI) all stipulate "serious circumstances" as the constituent elements of the crime, which embodies the limitation on the criminalization of the three criminal acts in legislation, and strictly abides by the principle of proportionality, which is worthy of recognition; in terms of judicial application and interpretation, "through the judgment of judicial professionals based on the rational judgment of the rule of law, the provisions of the criminal law as a code of conduct are reasonably interpreted, so as to eliminate or control the excessive interference of positive criminal legislation in people's lives within the minimum scope", "The circumstances are serious" In summary, the legislation on biosecurity crimes in the Criminal Law Amendment (XI) conforms to the overall national security concept in concept, and in practice, it not only focuses on prevention, but also responds to the new types of biosecurity crimes that have already occurred. This legislation makes up for the lack of biosecurity protection in China's criminal law, and the new crimes have set a threshold for criminalization and abide by the principle of proportionality. "Although the positive criminal law concept has led to the increasing number of criminal law crimes in China and the continuous expansion of punishment crimes, which has aroused the academic community's concern about active preventive legislation", although the biosecurity crime legislation of the Criminal Law Amendment (XI) is fundamentally a positive criminal law concept rather than a negative criminal law concept, but because of the above rationality of this legislation, it has effectively resolved the crisis of the legitimacy of the positive criminal law concept, which is a model of rational positive criminal law concept legislation, so it is worth affirming.
IV. Conclusion
Perhaps because of concerns about the unknown, or perhaps because of a misunderstanding of the past, criminal law is always anxious to say goodbye to the negative tradition of metaphysical criminal law and turn to the path of active prevention of criminal law based on risk governance. However, when criminal legislation frequently opens up new criminal themes, it should also stop to think about whether the grounds for criminalization are reliable and whether the scope of punishment is appropriate, because "no reason", "ineffective", "no benefit" or "unnecessary" punishment is essentially not to govern the crime but to be a vicious one. Through the legislation on biosecurity crimes and the allocation of its provisions in the Criminal Law Amendment (XI), it is not only necessary to see the addition of new crimes in the Criminal Law based on the needs of epidemic prevention and control and the development of biotechnology, but also to perceive the complex mentality of legislators who want to actively prevent biosecurity risks and worry about excessive risk prevention, which is a microcosm of the competition and integration of modern positive criminal law and traditional negative criminal law. Criminal law can neither "dwell on the past and forget reality", nor can it indulge in the present and lose tradition, and between tradition and modernity, criminal law needs a rational and positive prevention program that can stimulate its effectiveness, and in this regard, it is instructive to remember that the mutual criticism of positive and negative criminal law is instructive.
Source: Politics and Law, Quiet Legal Person Public Account