危害生物安全犯罪刑法立法的理念转型与规范调整OACSTPCD

While the rapid changes in biotechnology have benefited mankind,they have also triggered biosecurity risks.In order to prevent biosecurity risks,coordinate security and development,and ensure the adaptability of the criminal law,China should formulate an inclusive,targeted,and systematic criminal law legislation under the guidance of the principles of risk governance and scientific legislative guidelines.On the one hand,for the purpose of improving the uncertainty of biosafety risks through the certainty of legislation,and strengthening the normative guidance role of criminal law,attentions should be paid to the rigor and forward-looking nature of the criminal law legislation on crimes endangering biosecurity,moving the threshold of risk management forward,and carrying out preventive intervention before certain risks are realized.On the other hand,a typological mode of thinking should be used to straighten out the relationship among different criminal acts endangering biosecurity,clarify the risk levels of different acts and treat them differently,screen whether various types of crimes endangering biosecurity can be regulated by existing legislation,and finally carry out typological legislation through generalization of situations where new criminal and punishment norms should indeed be added.In addition,in order to adapt to the complexity,uncertainty,and other characteristics of crimes endangering biosecurity,the systematization of criminal law legislation for crimes endangering biosecurity should also be strengthened.Specifically,it is necessary to ensure a rigorous logical structure between the internal provisions of the criminal law,but also to maintain coordination and unity between the criminal law and other laws such as the civil law,the biosecurity law,and the infectious disease prevention and control law. When we look at the criminal law of China rationally,we will find that the existing provisions can curb crimes endangering biosecurity to a certain extent.However,on the whole,it belongs to an emergency legislation.This kind of legislation overlooks the prevention of risks,which in turn leads to a lack of comprehensiveness,foresight,pertinence,and systematicity in relevant legislation.The problems existing in the current criminal law legislation are manifested in the following aspects:1.failure to designate units as the subject of crimes such as the crime of illegal introduction,release,and disposal of invasive alien species,or the crime of illegal implantation gene-edited embryos;2.failure to criminalize acts that pose a serious danger to society,such as the illegal use of human genetic resources in China,and the abuse of gene editing other than gene-edited embryos implanted into human or animal bodies;3.failure to effectively prevent high-risk crimes endangering biosecurity,such as reproductive cloning and related crimes,and crimes endangering the biosafety of pathogenic microorganisms in laboratories;4.failure to distinguish between the risks of the abuse of cloning technology and the abuse of gene editing technology;5.failure to make typified regulations for infectious disease prevention and control crimes by taking advantage of duty;6.failure to accurately locate the position of crimes such as the crime of illegal collection and smuggling of genetic resources,the crime of causing the spread of infectious disease strains and viruses in the criminal law system;7.failure to coordinate with the provisions of the biosecurity law,the infectious disease prevention and control law,etc. Based on the response to the actual needs of preserving biosecurity and national security,relevant response measures should be taken based on the current legislative provisions of the criminal law of China,focusing on the characteristics of each type of biosecurity risk itself and the provisions of the precedent law,and under the guidance of the concept of preventive criminal law,the principle of unity of law and order,and the principle of balance between crime and punishment. Firstly,in general,according to the nature of the crime,the central acts of crimes will be concentrated in the chapter on crimes endangering public security.However,it is also necessary to take into account the connection between specific crimes,and marginal behaviors should be separated and regulated in other chapters.For example,the act of illegal provision of biosafety information that belongs to state secrets overseas will be stipulatedin the chapters on crimes endangering national security,and the act of abuse of gene editing technology,illegal introduction,release,and disposal of invasive alien species will be stipulated in the section of crimes endangering public health.Secondly,based on factors such as the urgency of the danger caused by the criminal act endangering biosecurity,the probability of the actual harm occurring,and the magnitude of the harm caused,set up abstract dangerous offenders for reproductive cloning and related crimes,and specific dangerous offenders for crimes endangering the safety of pathogenic microbiology laboratories.Thirdly,units should be designated as the subject of crimes such as the crime of illegal implantation gene-edited embryos.At the same time,the illegal use of human genetic resources in China and the abuse of gene editing beyond the implantation of gene editing into human or animal fetuses shall be criminalized to fill the loopholes in criminal penalties.