Judicial Cognizance Of The Crime Of Forcing Or Organizing Others To Work At Risk Against Regulations

At present,China’s social structure is in a transitional period.The crime rate of workplace accidents remains high,posing a major challenge to China’s economic and social development.The crime of forcing or organizing others to work at risk against regulations means the crime of forcing others to operate at risk in violation of rules and regulations,or organizing operations at risk even knowing that there are serious hidden dangers of accidents but not eliminating them,thus causing heavy casualties or other serious consequences.The act of "forcing risk violation" belongs to the punishment scope of the crime of serious liability accident.In the "Amendment(VI)to the Criminal Law of the People’s Republic of China",the legislator makes a separate provision for this act.After several years of judicial practice,this crime has been significantly revised in the "Amendment(XI)to the Criminal Law of the People’s Republic of China",adding a new circumstance of crime,and renamed as the crime of forcing or organizing others to work at risk against regulations.Legislative provisions have been improved.The application of new charges must exist in groping period and labor pains period.In order to apply this crime more reasonably,it is necessary to solve the three problems of this crime,that is,to clarify the scope of regulation,to clarify the harmful behavior,to determine the responsibility.Therefore,in the first chapter,through sorting out the legislative evolution of this crime and analyzing the value choice of criminal policy,it is believed that the punishment scope of this crime is limited to professional negligence,and intentional crime does not belong to the regulation scope of this crime.By summing up the judicial status quo,the author holds that there are some problems in the judicial determination of this crime,such as excessively light punishment,difficulty in proving the behavior elements and confusion in the determination of coercive behavior.The introduction of the "Amendment(XI)to the Criminal Law " has put forward higher requirements for the accurate identification of new behavior plots.Facing the unsolved judicial dilemma and the application of new norms,the second chapter discusses the crime of endangering behavior.It divides the harmful acts of this crime into the type of forcing illegal risk and the type of organizing risky operation,and analyzes the connotation of each element in the two types of acts,the problems existing in the judicial determination and the solutions.It emphasizes the responsibility of behavior and considers the progressive nature of risk-taking,compulsion and organization in judicial determination,which is the basis for the judgment of the establishment of dangerous behavior.After clarifying the manifestation of the harmful behavior and the way of judicial determination,the third chapter analyzes the subject of the crime from the perspective of liability,and holds that the unit does not have the subject qualification.The identity generality and duty particularity of natural person subject.Based on the typification of the subject,this paper discusses the basis and identification of the responsibility of responsible person or manager and actual controller or investor,and reasonably limits the ownership of risk jurisdiction.In the subjective aspect of this crime,it is considered that this crime belongs to the crime of business negligence.The obligation of foreseeing based on the possibility of foreseeing is the element of subjective responsibility.Their foreseeing obligation is special compared with that of ordinary people.Because of the emphasis on behavior attribution,there is no need to foresee specific causal process in the determination of the foreseen content.In the aspect of attention ability,the judgment criterion of actor’s attention ability adopts the mode of"ordinary person+special actor".The application of the new charges still needs a lot of exploration.This paper tries to clarify the important and difficult problems in practice from the judicial identification of harmful behavior,subject and subjective aspects,so as to play the role of prevention and punishment of this crime.