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Research On The Crimes Of Chinese Public Servants' Negligence In Supervision

Posted on:2009-11-16Degree:DoctorType:Dissertation
Country:ChinaCandidate:G WangFull Text:PDF
GTID:1116360305956854Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
The crimes of public servants'negligence in supervision are those crimes that are due to the public servants'negligence of their duties as supervisors. From the angle of criminal law and administrative law, the author researches on the crimes of Chinese public servants'negligence in supervision in the dissertation. The dissertation can be classified as practical research. The constitution of crimes of public servants'negligence in supervision is the center of the research. The author makes efforts to combine theory and practice. The target of the research is to build a rational train of thoughts on the constitution of crimes of public servants'negligence in supervision, to clearly define those public servants who are to blame for the serious harmful consequences, and to put forward specific criteria for explanation of law and judicial administration.Apart from the introduction and the surplus comment, the dissertation is composed of five chapters, with approximately 160,000 words. The dissertation's structure can be divided into two parts: the summary and the segments.In the introduction, the author reveals the value of the research as well as the research method. The value of the research lies in three aspects. Firstly, from the aspect of theoretical research, crimes of negligence in supervision show a two-level structure, and the investigation of such crimes is complicated. Therefore, the research in the dissertation has its unique theoretical value. Secondly, from the aspect of political practice, the criminal liability for negligence in supervision is an important part of public servants'legal liability. And the system of public servants'liability is significant to develop the society and political practice, to improve the image of the government and the public servants, to intimate the relations between cadres and masses, and to enhance the Party's ability in reign. Thirdly, from the aspect of judicial administration, one of the goals of the research is to resolve the problems of criminal liability in reality. Such methods as systematization, logic, comparison and exemplification are adopted in the dissertation.In chapter 1, the author surveys the object of the research, that is, the crimes of Chinese public servants'negligence in supervision, and makes necessary foundations for the following research. The chapter includes four sections. In section 1, the author introduces the theories about negligence in supervision. In the history of negligence theory in continental law system, there are three theories, that is, old-negligence theory, new-negligence theory and super-new-negligence theory. In Anglo-Saxon law system, the matches to such concept are recklessness and negligence. Recklessness includes subjective recklessness and objective recklessness. And there are two theories about negligence, that is, theory of act and that of inadvertence. On the concept of negligence in supervision, the concept in narrow sense indicates that the supervisor breaches his duty of care. In broad sense, the concept includes administrant negligence where there are direct relations between the administrant and the harmful consequences. According to the three theories, the constitution of negligence in supervision is different. In the dissertation, the author analyzes the crimes of Chinese public servants'negligence in supervision on the basis of new-negligence theory. On the application of negligence in supervision, the investigation should be limited in professional fields. On the condition of the supervisee's intentional crime, whether the supervisor is to blame should be analyzed specifically. Nowadays, the theory of negligence in supervision is widely adopted in the countries and areas of continental law system. While in the countries and areas of Anglo-Saxon law system, the liability of supervision is applied to natural person and legal person. In section 2, the author introduces the law about such crimes in China. In ancient China, the legislations about such crimes show the following features: the officials'dereliction of duty was punished severely; such legislations on the crimes of officials'negligence in supervision developed from those crimes of narrow sense to those of broad sense; the system that one is implicated because of his professional relations charged or found guilty was an important characteristic of legislation in ancient China. According to the criminal law in modern China, public servants'negligence in supervision is a sort of negligent crime of dereliction of duty. In section 3, the author summarizes the features about crimes of Chinese public servants'negligence in supervision: firstly, the public servants as supervisors violate the criminal law, and they should endure criminal responsibility; secondly, the research on crimes of public servants'negligence in supervision is based on the theory of criminal negligence and that of negligence in supervision, as well as the concerned systems about public servants; thirdly, the occurrences of such crimes are differentiated because of the public servants'professional categories, posts and ranks, as well as the sorts of negligence in supervision. In section 4, the author explains the analysis frame of the crimes of Chinese public servants'negligence in supervision. First of all, the author analyzes the theoretical problems in the constitution of negligent crime. On the relationship between duty of care and capability of care, both sides are connected and indispensable. When we consider whether duty of care exists, we should consider whether capability of care exists. On the relationship between duty to anticipate harmful consequences and that to evade harmful consequences, a person inevitably breaches the duty to evade harmful consequences when he breaches the duty to anticipate harmful consequences; while a person unnecessarily breaches the duty to anticipate harmful consequences when he breaches the duty to evade harmful consequences. On the criterion for capability of care, such process is that the society, reflected as the court in judicial administration, determines whether the actor is able to care, that is, anticipate or evade, harmful consequences according to the common idea in the society on the basis of the actor's subjective and objective conditions on the spot. On the above basis, the author expounds the analysis frame of the crimes of public servants'negligence in supervision. The analysis should follow such a train of thoughts as"duty to care—negligent act—harmful consequence and cause effect relationship".In chapter 2, the author researches on the sources of the duty to care in the crimes of Chinese public servants'negligence in supervision. The chapter includes two sections. In section 1, the author analyzes the definition of public servants. They should be defined according to responsibility, status and salary. In section 2, the author analyzes the responsibility of public servants. On the source of public servants'responsibility, there are mainly constitution, laws, administrative regulations, regional regulations, autonomous regulations, department formulations, administrative rules, post specifications, warranties, and the temporary tasks from the concerned institutions. In reality, a point which should be cared is that those public servants who occupy non-leadership posts are also likely to commit the crimes of negligence in supervision. When we consider the responsibility of those public servants in the non-standing institutions, we should analyze the issue specifically.In chapter 3, the author expounds the duty to care in the crimes of Chinese public servants'negligence in supervision. The chapter includes two sections. In section 1, the author analyzes the duty to anticipate harmful consequences. The duty to anticipate harmful consequences should be determined by two aspects: firstly, there are the sources of duty to anticipation, which is reflected as public servants'responsibility in their crimes of negligence in supervision; secondly, the actor has the capability of anticipation. In reality, the principle of trust should be considered as the criterion to eliminate the capability of anticipation in crimes of negligence in supervision. In section 2, the author analyzes the duty to evade harmful consequences. The duty to evade harmful consequences should be determined by two aspects. Firstly, there are the sources of duty to evasion, which are reflected as public servants'responsibility in their crimes of negligence in supervision, and the actor has anticipated the harmful consequences. Secondly, the actor has the capability of evasion. In reality, the principle of probability of expectation should be considered as the criterion to eliminate the capability of evasion in crimes of negligence in supervision.In chapter 4, the author analyzes the conducts in the crimes of Chinese public servants'negligence in supervision. In section 1, the author analyzes the conduct of breach of duty to anticipation. In reality, as for the occasions that the actors don't anticipate the harmful consequences, we should make analyses specifically and differentiate dereliction of duty and miscarriage. And we should avoid the theory of liability only on consequences. On the criterion to determine whether the actor has anticipated the harmful consequences, we should take the actor's subjective and objective conditions on the spot into consideration and make decisions according to the common idea in the society. On condition that the actor recognizes the harmful consequences relatively specifically and approximately, we should make decision that he has anticipated the harmful consequences. In section 2, the author analyzes the conduct of breach of duty to evasion. On the criterion for breach of duty of evasion, it should be considered as the criterion of crime whether the act gives rise to the unallowable risk. As for the meaning of the rise of the unallowable risk, such rise should be solid. If it is doubtful that the act of breach of duty to care gives rise to risk, the principle of inferred innocence should be applied. In reality, it should be pointed out that such risk is in the meaning of criminal law, not that of administrative law, civil law or everyday diction.In chapter 5, the author expounds the harmful consequences and the cause effect relationship in the crimes of Chinese public servants'negligence in supervision. In section 1, the author analyzes the harmful consequences in the crimes of Chinese public servants'negligence in supervision. In China, severe harmful consequence is a necessary factor in the constitution of crimes of negligence in supervision. In reality, it should be pointed out that such harmful consequences are different from the harmful consequences or losses in the meaning of civil law. Such difference can be attributed to the difference between the issue solved through criminal law and that solved through civil law, as well as the difference between the nature of criminal legal relation and that of civil legal relation. In section 2, the author analyzes the cause effect relationship in the crimes of Chinese public servants'negligence in supervision. There is an indirect relation between the negligence in narrow sense in supervision and the harmful consequences, while there is a direct relation between administrant negligence and the harmful consequences. There are mainly three theories, that is, condition theory, cause theory and common cause theory, in continental law system. The latter is reasonable. In Anglo-Saxon law system, the cause includes two levels, that is, the fact cause and the legal cause. In reality, the judgment of the cause effect relation should follow two steps: firstly, define the boundary of cause according to the fact cause of Anglo-Saxon law system or the condition theory of continental law system; secondly, confirm the cause according to the legal cause of Anglo-Saxon law system or the common cause theory of continental law system. It should be pointed out that the cause conduct, which is finally investigated, is fixed by the law.In the surplus comment, the author explains the policy and the principles to improve the precautions and punishments against the crimes of Chinese public servants'negligence in supervision. Following the criminal law, we should punish the offenders who commit negligent crimes of dereliction of duty including negligence in supervision severely. To take precautions against the public servants'dereliction of duty including negligence in supervision, we should make considerations from both the angle of system-reforming and that of regulation-modification.
Keywords/Search Tags:public servant, negligence in supervision, crime, constitutional elements
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