Case Description

In April 2022, after implementing global closed management in Pudong New Area, Shanghai, Tian Moumou privately went out to purchase food and refused to cooperate with nucleic acid testing. The Pudong Branch of the Shanghai Public Security Bureau, in accordance with the provisions of Article 50, Paragraph 1 (1) of the "Law on Public Security Management Penalties", has imposed a penalty decision on Tian Moumou by refusing to implement decisions and orders made under a state of emergency, imposing an administrative detention of ten days and concurrently imposing a fine of 500 yuan.

Case Description

The state of emergency stipulated in the Constitution of our country refers to a temporary state of serious emergency that is implemented locally or nationally when a particularly significant emergency occurs or is about to occur and requires the state organs to exercise emergency powers to control and eliminate its social hazards and threats. The Fourth Amendment to the Constitution of March 14, 2004 replaced martial law with a state of emergency, while providing for the authority to decide and declare a state of emergency.

Currently, there are two views on the determination of "emergency state" stipulated in the "Public Security Management Penalty Law", namely, "factual state theory" and "legal setting theory", in both theoretical and practical circles. According to the theory of factual state, "emergency state" refers to a factual state objectively formed by nature and society; According to the theory of legal setting, "emergency state" refers to a legal system established by law and initiated during a special period, which is consistent with the provisions of the Constitution.

Judging from the 331 cases of related administrative penalties that have been adjudicated across the country since the outbreak of the epidemic in 2020, the court believes that, from the perspective of legislative purposes, the provisions of Article 50, paragraph 1 (1), of the Public Security Management Penalty Law are established to ensure the effective implementation of decisions and orders of people's governments at all levels, and to avoid situations where orders do not comply and prohibitions do not continue. The provisions of Article 50, Paragraph 1 (1), of the Law on Public Security Management Penalties should be understood in a broad sense, and should not be understood as only applicable to "emergencies" at the national level.

Many local public security organs and some judicial organs also prefer to apply the "emergency state" specified in the Law on Public Security Management and Punishment to the factual state. If citizens refuse to implement relevant government orders, resulting in disrupting public order or infringing on the personal rights of others, which does not constitute a criminal offence, the public security organs take measures such as fines and administrative detention to maintain social security and order.