Study On The Identification Of Negligent Crime Of Supervision

This paper studies the identification of negligent crime of supervision,which is divided into five parts:introduction,three parts of the body,the conclusion.The first part of the body introduces the background of negligent crime of supervision,the concept of supervisory negligence and the characteristics of supervisory negligence.At the same time,through the study of the three research positions of negligent crime of supervision:the old negligence theory and the correction of the old negligence theory,the theory of the sense of danger and fear(the ultra-new negligence theory),and the new negligence theory,the following conclusions are drawn:First,the old negligence theory and the correction of the old negligence theory,the theory of the sense of danger and fear in the process of supervising the determination of negligence crime all have obvious disadvantages.Second,the new negligence theory is the more appropriate studying position of the criminal law theory to identify the negligent crime of supervision under the background of our country’s increasingly entering into the risk society.It is expounded that the criminal law should analyze the negligent crime of supervision according to the construction of the new negligence theory,and the definition of negligence behavior according to the new negligence theory:the act or omission of the violation of the objective obligation of attention,and the supervisor’s obligation of attention in the negligent crime of supervision should be defined according to the idea of new negligence theory that negligence is divided into negligence as a constituent element and negligence as a liability element.The second part of the body analyzes the constitutive requirement of negligent crime of supervision.First,this part discusses the reasons why the supervisory negligence belongs to both the elements of composition and liability,and analyzes the objective(illegal)elements and subjective(responsibility)elements of the negligent crime of supervision.Second,according to the research position of the new negligence theory,the perpetrating act of negligent crime of supervision refers to the act or omission of the supervisor in violation of the obligation of objective attention(including the objective obligation to foresee results and the objective obligation to avoid results).The contents of the supervisor’s objective obligation to foresee results includes two aspects:firstly,the rational supervisor should foresee that his(her)conduct may lead to the direct actor starting or continuing to commit the violation;secondly,the rational supervisor should foresee that the violation of the direct actor may lead to the accident.The contents of the supervisor’s objective obligation to avoid the results also includes two aspects:firstly,the violation of the direct actor should be avoided;secondly,when the direct actor have caused the violations,the violation should be stopped and remedial measures that to avoid the accident should be taken.The performance of the supervisor’s behavior is the wrong instruction of the direct actor and forcing the direct actor to commit violations.In discussing the inaction of the supervisor,the source of the obligation of the supervisor is the role of the cause of the accident,including the role of the source of the hazard and the role of the danger to significant legal interests of the direct actor.The supervisor’s inaction manifests it as not stopping the violation of the direct actor’s operation and not making up for the loopholes in the safe production operation that have appeared that endanger the great legal interests of others,and still risking the direct actor to operate.Third,this part discusses the fact of attribution and the result imputation of the negligent crime of supervision,and holds that the causal relationship(the fact of attribution)of the negligent crime of supervision should be judged by conditions and overlapping causality relationship theory,including the causal relationship between the direct perpetrator’s behavior and the accident,and the casual relationship between the supervisor’s behavior and the accident;the result imputation of the negligent crime of supervision should be judged by objective imputation theory,including the result imputation judgment of the direct perpetrator and the result imputation of the supervisor.In using objective imputation theory to blame the direct perpetrator for the result,it should be judged whether the violation of the direct perpetrator creates a danger that is not permitted by law or raises the existing danger,whether the danger is ultimately realized in the accident,whether the violation of the direct perpetrator is a component of the relevant crime(such as the crime of major liability accident);In using objective imputation theory to blame the supervisor for the result,it should be judged whether the supervisor’s behavior creates an unacceptable danger or raises the risk that already exists,whether the danger is realistic in the accident,whether the supervisor’s behavior is within the scope of the relevant crime components.Fourth,the supervisory negligence as an element of responsibility is discussed in this part,and it is considered that whether the supervisor should bear the objective obligation of attention on the basis of the supervisor’s ability to foresee the results and avoid the results.The third part of the body is to analyze the three reasons that can restrict the determination of the negligent crime of supervision.They are:First,the principle of permissible danger.This includes,in particular,the position of the criminal system of the principle(denying the conformity of constitutive elements),the conditions of application of the principle(without creating or realizing the risk of non-permissible)and the circumstances of failure;Second,the principle of trust.This includes the basis for the application of the principle,the conditions under which it applies(the supervisor has a substantial relationship of trust with the supervised person,and the supervised person is actually capable of performing the tasks assigned by the supervisor)and the circumstances in which the principle cannot be applied(the direct actor lacks risk control capacity,the supervisor himself has a violation,the direct actor is committing the violation);Third,the protection purpose of the attention specification.This includes the principle of the protection purpose of the attention specification,the source of the attention specification,the applicable conditions,and the failure of the protection purpose of the attention specification.