A Study Of The Crime Of Supervisory Negligence

The scholars in Japan and Germany advanced the theory about the crime ofsupervisory negligence in order to settle the fault liability of the person bearing thesupervisory obligation in major catastrophic accidents during the1960s to1970s.Nowadays, with the rapid development of the economy and society, the society hasentered a period of surging risk. The liability accidents, loafing, malfeasance andpublic hazards frequently incurred, and the number of cases about the crime ofsupervisory negligence and other new styles of crime negligence are increasing. Allthe phenomena persuade us to think how to handle the illegality and accountability ofthis kind of negligent act precisely. In theory, the traditional theory of negligencefaces great challenge when it comes to construing this issue, while the theory of crimeof supervisory negligence provides us a new thinking. Practically, the liability ofsupervisory negligence conforms to the developmental requirement of our judicatorypractice, and helps to prevent and fight with all kinds of crime of supervisorynegligence.Through the method of comparison, logic speculation and positive analysis, thedissertation is divided into7chapters, including the theoretical and social foundationof supervisory negligence, basic composition of crime of supervisory negligence,prevention from responsibility of supervisory negligence, and penalty for the crime ofsupervisory negligence.The title of the first chapter is “the formation and development of the theory ofsupervisory negligence”, mainly elaborating the definition and the theoretical essence of supervisory negligence. Pro. Fujiki Hideo, a Japanese scholar, is the first one to putforward the concept of Supervisory Negligence through the study of public hazardsand judicial precedent, in order to settle the problem of fault liability hided in thesupervisor behind the direct perpetrator. Although the concept of supervisorynegligence is generally used in the theory and practice fields, there exists differentcomprehension. The purport of this dissertation is particularly emphasized on thenarrow sense of supervisory negligence, which is defined that in the official activitiesof business or business related, between the supervisor and supervisee of affiliatedrelationship (including the administrative leadership, operational guidance, businesscooperation, ect.), harmful consequence of supervisee’s behavior caused by thenegligence and slack, or improperly command and guidance, or misfeasance of thesupervisor, and ascertain the responsibility of the supervisor accordingly. Supervisorynegligence belonged to one kinds of professional negligence, whose essential problemto be settled is that when the business staff’s negligent act has caused serious socialharmful consequence, the person who is in the position of leadership, supervision ormanagement shall bear the criminal responsibility. Therefore, we should pay attentionto the problem that the negligent act of the supervisee must be the connection betweenthe negligence of the supervisor and the harmful consequence. What’s more, only thenegligent act is the intervening act, while the supervisor shall not bear theresponsibility of intentional crime and non-criminal behavior with the reason ofsupervisory negligence, if we want to understand the basic implications of the crimeof supervisory negligence. The theory of supervisory negligence is combinativeoutcome of the development of negligence theory and the requirement of fightingcrime. From the old negligence theory to the new one, even to the latest theory, thecore of negligence is the results predicted obligation violated by the perpetrator.However, the latest development theory of negligence emphasizes that the resultspredicted obligation shall be expanded properly in the industrialized risk society, andthe obligation shall not rest on the prediction of specific results, but shall ascertain thenegligent responsibility of perpetrator if violating the sense of unease. In this way, thelatest theory of negligence becomes the mainly theoretical foundation of the theory of supervisory negligence.The title of the second chapter is “the subject of the crime of supervisorynegligence”. This chapter mainly elaborates the concept and characteristics the subjectand the principle of definition and limitation of the subject. The supervisor must bethe special subject with specific position and status. The special position of subjectrequires the official and operational supervising relationship between the supervisorand supervisee. Supervisor shall be the one in the supervising and managing positionand bearing the same responsibility. However, there are some differences between thesupervisor and leader, so is the liability of supervisory negligence and the leadershipresponsibility. It is inappropriate to limit the liability of supervisory negligence to theleadership responsibility. Comparing the subject of crime of supervisory negligenceand general criminal negligence, we can conclude the following importantcharacteristics:1. the supervisor existed in the specific supervisory relationship;2. thesupervisor is over the supervisee;3. the supervisor existed in the hazardous businessrelationship;4. the supervisor enjoy the actual supervisory authority. We put forwardthree fundamental principles when identify the subject of the crime of supervisorynegligence:1. the supervisor is involved in the hazardous affair when performing dutyor ultra vires;2. the supervisor violates the statute when performing the duty,3. thesupervisor plays a direct role in the process of commanding, deciding, training,inspecting and dictating. There are four kinds of supervisor:1. spot supervisor that iscommanding, organising, inspecting and training the operational staff;2. middle-levelsupervisor in the organization;3. the principal person in charge of the unit who is thehigh-level supervisor, including legal representative in legal entity and non-legalentities and the principal person in charge of the project,4. the government officialthat supervises and administrates the operational department according to law. In thesame time, the subject shall be limited and excluded by three principles:1. theprinciple of inside first and later outside, the supervisory negligent liability of thecompany’s manager shall be taken into consideration firstly when the disasters andaccidents happened to the company, and the then shall be the problem of thesupervisory negligence of the official in the relevant government;2. the principle of suspending negligence, definition of the subject is a process of recalling since directperpetrator of the hazardous accidents, but shall terminate in the suspend ofnegligence in the series links which shall not endless;3. principle of reliance, whenthe supervisory negligence happened, the negligent liability of supervisor will beexempted if the relationship of supervisor and supervisee is reasonable reliance.The title of the third chapter is “duty of care of supervisory negligence”. Thischapter mainly elaborates the definition, cause, main content, perform and violate ofduty of care. Duty of care refers to the responsibility of a person who acts or omits toact. The sources of duty of care can fall into two categories and four aspects. The twocategories include the statutory provision and the rule of daily social life, while thefour aspects are listed below:1. duty of care expressed in the statute, decree,regulation;2. duty of care on common sense and habit;3. duty of care generated bythe previous act;4. duty of care caused by the acceptance of engagement oragreement. The content is what the perpetrator shall be noticed, which is generallyrelated to the duties of result prediction and avoidance, normally the specific result.Theory of abstract result prediction is applied to ascertain the fault liability ofsupervisor in the crime of supervisory negligence. When predicting the harmfulconsequence, the perpetrator shall predict and judge the nature of their own behaviors.The harmful consequence is more easily caused by Misfeasance and illegal act are,and the perpetrator shall not bear the obligation of predicting the harmful consequence,when they performing the legitimate daily behavior and business conformed to rules.The obligation of result avoidance in supervisory negligence manifested in threeaspects:1. obligation of establishing the security system;2. the obligation of resultavoidance before the occurrence of harmful consequence;3. preventing the dangerousexpanding and eliminating dangers after the occurrence. The perpetrator shall bear theduty of care and be able to fully perform such a duty. The duty of care is violated ifthe perpetrator fails to pay attention or incorrectly performs their duty of care.The title of the fourth chapter is “the behavior of supervisory negligence”. Thischapter mainly elaborates the definition and form of the behavior of supervisorynegligence. It is the new theory of negligence that makes the negligent behavior highly exposed. The new theory of negligence advances that the essence of crime ofnegligence is not the violation of predicted obligation, but violating the obligation ofresult avoidance. Negligent behavior is the behavior violating the duty of care, withsubstantial risk to harm the legal interest. Behavior of supervisory negligence is thebehavior violating the special duty of care of the supervisor, which leading tosubstantial risky behavior of constitutive requirement. Firstly is the direct violation ofspecial duty of care, secondly including the real risky of the occurrence of theconsequence of constitutive requirement. The real risk means the objective andspecific risk violating the legal interest, that means the substantial and closingconnection between the negligent behavior and specific harmful result, and the legalinterest is being infringed urgently. In some styles of crime, the perpetrator violatesthe duty of care objectively, which makes the legal interest under real hazard. So itcan be defined as the behavior of supervisory negligence when the perpetratorsviolating the duty of care initially, such as command others to take the risk and violatethe regulatory. While the urgency of legal interest infringement is not so obvious insome other crime, but the legal interest under high hazard will be transformed intoreality instantly if Intermediate factor is intervened. For example, under thecircumstance that unestablished security system resulted in fire or mining accident.The act of perpetrating in criminal law shall only express in the form of act andnonfeasance. Behavior of supervisory negligence means the supervisor fail to performthe supervisory responsibility with active body behavior, which violates theprohibitive norm directly and manifested as misguiding and misfeasance. However,the nonfeasance of supervisory negligence is just the negligent supervisoryresponsibility, including fully nonperformance and incomplete performance.The title of the fifth chapter is “the causality of supervisory negligence”. Thischapter mainly elaborates the nature of the causality of supervisory negligence andhow to define this causality. The causality of reality is considered as the preconditionof causality of supervisory negligence, but supervisory negligence is the result ofcriminal judgment as a kind of criminal phenomenon, and the objective basis toascertain the criminal responsibility of the supervisor which shall be valuable in criminal law, and the result of the choice in criminal law. This causality is therelationship between behavior of supervisory negligence and consequence ofconstitutive requirement, and the manifestation of general causality between harmfulaction and harmful consequence in supervisory negligence, not the causality ofsupervisory negligence and negligent behavior of supervisee, whose character isindirect and multi-hierarchy. There are one principle and three steps to define thecausality of supervisory negligence. The principle means that the causality of realityprior to causality in law, and the causality in law can only be probed on the basis ofclarifying the causality of reality. While the three steps are:1. judgment of formatcompliance, which means to inspect whether the causality of supervisory negligentbehavior and constitutive required consequence accord with the prediction of specificprovisions in criminal law.2. Judgment of fully relevance, which means to inspectwhether there is closing relevance between the supervisory negligent behavior andconstitutive required consequence.3. Judgment of interpretability, which means toinspect whether there is element leading to suspension of the causality.The title of the sixth chapter is “suspension of supervisory negligent liability andprinciple of trust”. This chapter mainly elaborates the general applicable theory oftrust principle and the possible and applicable principle in supervisory negligence.Principle of trust means the actor believe others to abide by law and act properly.Even if other participates ignore the regulation and act improperly, and constitute theconsequence with their own behavior, the actor’s fault ability shall not be ascertained.Principle of trust originated from Germany, was applied and developed in criminalnegligence of traffic accident at first, but with the support of theory and practice, it isextended into other realm which manifested the exuberant vitality. The developmentand application of trust principle normally connected with the theory of danger,danger assignment and social equipollence. The basic theory of the trust principletaking effect is division of labor and coordination in society, which can be bothapplied in individual model and organizational model. As for the essential spirit ofsupervisory negligent theory and legal principle of trust, the two aspects arecontradictory, since one is the theory of criminal expansion and the other is the theory of criminal limitation, which makes the supervisory negligent theory more scientific.The precondition that the trust principle applied in supervisory negligence includesthree aspects: firstly, the establishment of completed social labor division; secondly,business staff in specific posts shall be professional qualification and ability; thirdly,the sound working environment. Only the trust between supervisor and supervisee isequipollent, can the negligent liability of supervisor be interrupted.The title of the seventh chapter is “the punishment of the crime of supervisorynegligence”. This chapter mainly elaborates the relationship between crime ofsupervisory negligence and joint negligent crime, and the punishment principle andpenalty configuration of supervisory negligent crime. This article is trying to analyzethe crime of supervisory negligence with the view of joint negligent crime. There isno initiative contact of criminal intention, but joint loafing psychology in the jointduty of care between several perpetrators. This kind of psychology can affect andimpact with each other. Since the joint behavior of the perpetrators violating the jointduty of care, we can regard the common negligent crime as joint offense. It issignificant to recognize the joint negligent crime, which can help us not only todeepen the theory of joint negligent crime and joint offense, but also settle the judicialproblem. Joint negligent crime means more than two perpetrators incur the joint dutyof care to prevent the occurrence of harmful consequence. A joint criminal pattern ofharmful consequence resulted from the joint negligent behavior of the perpetratorswhole and all. There are three core elements: joint negligent attitude, joint duty ofcare and joint negligent behavior. The supervisory negligence belongs to jointnegligence when considered these three elements. Since supervising and besupervised is considered more closing entirety no matter in normative sense or inbehavior sense. Their negligent attitude will interact and interaffect with each other,while constitutes an entirety. The behavior of supervisor and supervisee is integrityand constitutive with the requirement of social life and business cooperation,incurring the obligation of joint duty of care to prevent the danger jointly. Thesupervisor and supervisee violating the joint duty of care and can’t prevent theharmful consequence resulted from the negligent behavior with each other is regarded as the supervisory negligence. Since the supervisory negligence belongs toprofessional negligence crime and realm of joint criminal negligence, the punishmentprinciple shall be severe punished, joint responsible and punished separately. With thepurpose of strengthening the practical, diversity and pertinence of statutory penalty ofsupervisory negligence, we believe to add new kinds of punishment, for instance: finepunishment and qualifications punishment, ect.