Luo Xiang: What is the legal responsibility for issuing a "false positive" report?

Xiang Luo/Professor, China University of Political Science and Law

According to reports, there are medical laboratories, in the regional nucleic acid testing, several times issued "false positive" reports, seriously interfering with the overall situation of local epidemic prevention and control. The relevant authorities give warnings to laboratories. A friend asked me if similar acts could be criminally prosecuted.

If there is sufficient evidence to prove that the relevant person deliberately issued a "false positive" report, this may still constitute a crime.

This mainly concerns the application of the offence of providing false supporting documents provided for in article 229, paragraph 1, of the Penal Code.

The relevant provisions of the Criminal Law are : "Personnel of intermediary organizations undertaking duties such as asset appraisal, capital verification, verification, accounting, auditing, legal services, sponsorship, safety assessment, environmental impact assessment, environmental monitoring, etc., who intentionally provide false supporting documents, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and shall also be fined".

Are medical laboratories part of the intermediary organization in this crime? This relates to the same rules of interpretation in criminal law interpretations. Clauses such as "etc." in criminal law should be interpreted with equal value in accordance with the matters enumerated. For example, article 114 of the Criminal Code stipulates that whoever sets fire, breaks water, explodes, or releases poisonous, radioactive, infectious disease pathogens or other substances or endangers public safety by other dangerous methods, but has not yet caused serious consequences, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. Then, other methods here must be as dangerous as arson, water breaking, explosion and other behaviors, such as Zhang San holding 100 cockroaches and throwing them at Li Sijia, which cannot be understood as other dangerous methods. However, if Wang Wu drives a car and randomly hits passers-by, it is appropriate to belong to other methods.

On the face of it, it may seem far-fetched to interpret medical laboratories as intermediary organizations. Intermediary organizations refer to institutions that provide services to clients through professional knowledge and technical services in accordance with law. The crime of providing false supporting documents was first stipulated in the 1995 Decision of the Standing Committee of the National People's Congress on Punishing Crimes Violating the Company Law, and the main body of the crime was only four categories: asset appraisal, capital verification, verification, and auditors. In 1997, the Criminal Code added accounting and legal service personnel, and the word "etc." was added to cover the bottom. The 2021 Criminal Law Amendment (XI) was amended again, expanding the scope of criminal subjects and increasing the number of sponsors, safety assessments, environmental impact assessments, and environmental monitoring personnel.

It can be seen that with the development of the market economy, the scope of intermediary organizations has been expanding. For example, if environmental quality monitoring agencies provide false environmental monitoring data (such as PM2.5 data), the judiciary does not initially consider the monitoring agencies to be intermediary organizations. In famous jurisprudence, such as the Guiding Case No. 104 issued by the Supreme People's Court (The Case of Li Mou, He Moumin, and Others Destroying computer information systems), the defendants in this case repeatedly entered the automatic air monitoring station, blocked the sampler with cotton yarn, and interfered with the data collection function of the automatic monitoring system of ambient air quality in the station, and the court later punished it as a crime of damaging the computer information system. The judicial interpretation issued by the highest judicial authority in 2016 also affirmed this approach. However, in 2021, the legislature expanded the scope of intermediary organizations, arguing that environmental quality monitoring agencies are also intermediary organizations, and similar acts should constitute the crime of providing false supporting documents.

Similar to environmental quality monitoring agencies, medical laboratories can also be seen as a new type of intermediary organization. According to the provisions of the "Basic Standards for Medical Laboratories (Trial)" issued by the Ministry of Health in 2009, medical laboratories refer to medical institutions with independent legal personality qualifications for the purpose of providing relevant information on the diagnosis, management, prevention and treatment or health assessment of human diseases, including clinical blood and body fluid tests, clinical chemical tests, clinical immune tests, clinical microbiological tests, clinical cell molecular genetics tests and clinical pathological examinations, etc., and issue test results.

Medical laboratories are legally independent economic entities, independent of medical institutions in terms of management system, and impartial in providing third-party medical tests in terms of work functions. The essence of intermediary organizations is the "third organization" between the government and the market. Its main task is to undertake some things that are not suitable for the government and are not convenient for enterprises to undertake, and to make up for market deficiencies and government deficiencies appropriately. Nucleic acid testing is not only related to the health of individuals, but also provides an important reference for the government to accurately judge the epidemic situation and scientifically assess epidemic prevention policies. Therefore, it cannot be a purely market behavior, laissez-faire, with the pursuit of profit as the only orientation. At the same time, because the government does not have the ability to undertake excessively large testing tasks alone, it is necessary to let third-party testing agencies provide independent testing, but the government must supervise, and the profit-seeking impulse of enterprises must also be constrained by the law.

The crime of providing false supporting documents is a crime in Section 9 of the Crime of Disrupting the Order of the Socialist Market Economy in Chapter III of the Criminal Law. One might argue that medical laboratories providing false test reports would not disrupt market order is inappropriate. Many institutions can provide nucleic acid testing, if a certain institution makes false tests, or even stamps money, it is seriously irresponsible and promises to produce results in half an hour, which is of course a serious act of unfair competition. If left unchecked, it will inevitably lead to the expulsion of good money by bad money, affecting the normal order of the medical testing market.

Therefore, it is not improper to interpret an independent medical laboratory as an intermediary organization in the crime of providing false supporting documents. According to the Provisions of the Ministry of Public Security of the Supreme People's Procuratorate on the Criteria for Filing and Prosecuting Criminal Cases Under the Jurisdiction of Public Security Organs (II), criminal prosecution may be initiated if there are circumstances such as illegal gains of more than 100,000 yuan, or direct economic losses to the state, the public or other investors, such as 500,000 yuan or more. Therefore, if the medical laboratory deliberately provides a false positive report, affecting the government's epidemic prevention and control policy, causing certain direct property losses, it should be investigated for criminal liability if it meets the criminalization criteria.

The 2021 Criminal Law Amendment (XI) also adds several aggravating circumstances to this crime, one of which is to provide false safety assessments, environmental impact assessments and other supporting documents for major projects or projects involving public safety, resulting in particularly heavy losses to public property, the state and the interests of the people, which can be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and a fine. If the testing project of a medical laboratory belongs to a government procurement project, it has an important impact on the assessment of the epidemic situation, which naturally involves public safety, and the application of aggravated provisions is in line with legal reasoning.

The offence of providing false supporting documents is an intentional offence, but article 229, paragraph 3, of the Penal Code also provides for the offence of material inaccuracies in the production of supporting documents. Any personnel of the intermediary organization mentioned above who are seriously irresponsible and whose supporting documents are seriously inaccurate and cause serious consequences may be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined or fined individually.

The crime of providing false supporting documents and the crime of issuing supporting documents with gross untruths can be constituted by the unit. If the crime is the act of the unit, then whether it is the directly responsible supervisor, other directly responsible personnel, or the unit, it must be investigated for criminal responsibility.

The darkness of human nature is endless, and sometimes legislators cannot predict the degree of evil of man, so the judiciary can interpret the initiative within the scope set by the legislative language, exert the necessary autonomy, and restrain the degeneration of human nature. In human history, plagues have risen and fallen, but what is even more frightening is the plague of human nature, for which the law must play the necessary blocking function.

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Luo Xiang is a professor at China University of Political Science and Law. The rule of law in China is not in the grand narrative, but in the details of the carving. In "The Details of the Rule of Law", let us go beyond the results and clarify the context of the rule of law.

Senior Editor of this issue Xing Tan