Research On The Duty Of Care In Supervision And Management Negligence

From the point of view of world history,national modernization is industrialization development.Like the European and American preemptive countries,our country has developed rapidly since the reform and opening up,and all kinds of serious accidents have been frequent.This kind of accident sends many industries,especially the mine disaster.It is different from ordinary negligence crime that causes serious injury caused by legal interests,such as mass casualty and property loss.Its causal chain is not only directly related to the harm,but also to the supervisor.Therefore,in the study of the theory of criminal law,the concept of supervision and management negligence is forced.The research field of regulatory negligence,a prominent characteristics: its object of regulatory governance is often technical innovation or large-scale production by the pursuit of high efficiency,convenient and practical results of the cause,in a nutshell,the technology innovation or large-scale production mode exists a conflict of usefulness and danger.Therefore,on the one hand,we should take into account the principle of logical consistency in the study of criminal law in continental law system.On the other hand,we should consider the reality of the economic and social development of the country.This paper is based on the duty of attention as the main line,based on the trend of our country's economic and social development and the changing trend of various kinds of accidents,the research on the negligence of supervision and management is carried out.This paper uses literature research method,empirical research method and logical analysis method,the basic position of fault management basic concept,supervision and management of negligence in supervision,contents and characteristics of structure and its duty of supervision and management of negligence,to carry out a systematic study of the supervision and management of fault judging illegality identification and accident crime of negligence set dangerous crime problems.This article is divided into six chapters,and the number of the papers is about 17 thousand words.The specific contents are summarized as follows:The first chapter mainly expounds the current research situation of supervision and management negligence in Germany,Japan and China,and extracts the existing problems in the current research,and defines the connotation of the basic concept of supervision and management negligence.Objectively speaking,the supervision and management of negligence originated in Japan,which started Morinaga milk powder case.In the subsequent judicial practice of a series of accident cases,the research in this field has been further deepened through the dialogue between the theoretical and practical circles.The academic research of Japan in the dispute negligence constitution held by the standpoint of science,it is the fault of the old and new theory.Unlike the Japanese academic circles,the German academic circles studied the accident crime through the perspective of negligence omission,so the development of "guarantor" has been carried out throughout the whole process,and of course has also led to the fields of the theory of committed crime,causality and so on.The academic circles in our country focus on the position of the negligent tectonics,the basis of the duty of attention,the judgment of the violation of the duty of attention and so on.At present there are three aspects of research: first,research on the supervision of negligence is limited to negligence on the category,or should consider the objective imputation theory,individual illegal theory,and omission theory;secondly,the old negligence theory,new negligence theory,new negligence theory,which can be used as the theoretical position of supervision and management fault;third,pay attention to the obligations of chaos in ordinary negligence in the cognizance of negligence supervision management effect.The basic connotation of the supervision and management of negligence,negligent supervision and management including negligence,the former in the supervisor and harm result between intervention of the direct action,namely to "people" negligence;the latter lack of direct harm behavior behavior,damage results due to management of safety management and pay attention to the violation of the duty of the "object." negligence.The second chapter focuses on the evolution of the theory of negligence,the change of safety accidents in China and the corresponding criminal value standpoints.It expounds the theoretical standpoints that should be held in the study of supervisory negligence,and lays the foundation for this research.The evolvement of the theory of negligent tectonics has gone through the old theory of negligence,the new theory of negligence and the new theory of negligence.In addition to the component of logical thinking,the reason for the evolution of this theory is also the cause of the change of values.The former is manifested in the renovation of criminal law theory,such as behavior theory,constitutive elements,violation judgment and responsibility theory.The latter shows that it is more valuable to emphasize its usefulness in the face of risks and usefulness in technological progress and technological development.The idea of economic development based on the state standard has greatly promoted the economic development through the competition of GDP among local governments under the centralization of power system,and also caused many hidden dangers in the safety production of enterprises.Therefore,in the current political and economic situation in the specific focus on people's livelihood,supervision and judicial management of negligence should be focused on the protection of legal interests of the individual.The theory of new negligence advocates the negligence of committing its independent enforcement action,and categorization of negligent behavior is consistent with the logical self consistency of criminal dogmatism,but its value standpoint is still to be discussed.Some reference the continuation of the new negligence theory to implement the behavior of independence of the new negligence theory,because the argument that abstract Expected Agreement Supervision Negligence theory expansion cognizance of negligence criminal responsibility "of the basement.The third chapter of the paper mainly expounds the content,the basis and the characteristics of the duty of care for the negligence of supervision and management.The objective imputation theory thinks that intentional crime and negligent crime is the same with "criminal law norms to avoid the occurrence of harmful consequences" the duty of care;negligent crime in violation of duty of care for nature,the standard is too vague,easy to operate;pay attention to the violation of the duty of the judge,involving the objective duty of care,predictability,the possibility to avoid the consequence of a series of concepts,complicated repeatedly.From the factual level of ontology,the actor of the negligent criminal is subjective to the result of the constitutive requirements and is not planned.The fourth chapter begins with the evolution of illegality theory,mainly expounds the violation of duty of care in supervision and management negligence,namely the identification of illegal behavior of supervision and management negligence.The theory of illegality has been proved by the theory of subjective illegality and the theory of objective illegality,and it has also promoted the argument that the results are worthless and the behavior is worthless.At present,the dualism of the result of unworthless and incompatible behavior is becoming the mainstream.The wrongful offense is more illegal than the intentional offense.It is more objective and illegal: the object of wrongful judgement is the objective aspect of the act--the result of infringement,the harmful act and the causality.The identification of wrongful acts in supervising and managing negligence should first establish the organization's internal division of labor according to the internal structure and responsibilities of a specific organization,and identify the duty of duty of the perpetrator from the formal level.Then combined with the specific situation,we can judge whether it is true and negative and have the duty of attention.The act of supervising and managing the practice is in violation of the supervision of the dangerous nature of the infringement of legal interests and the obligation of setting up the duty of attention of the security management system.The result of the possibility of recognizing foresight by the new theory of negligence is to avoid the relevance of the obligation,and the old fault theory is the opposite.And the result forecast the possibility of concrete and abstract differences in foresight foresee judicial practice is not significant,the accident crime applicable regulatory negligence theory,the harm results occur,accidental and accidental damage,if the requirements of the results and the cause and effect process of detailed foresight,apparently unable to accountable for regulators.The causal relationship management supervision negligence is "due to a fruit" or "multiple causes multiple effects" type,with the indirect and multiple factors.The judgment of the causal relationship can first judge the fact and effect of the supervisor's behavior and the intervening factors,and then judge the legal cause and effect between the two.The fifth chapter of the paper mainly discusses the application of the principle of trust in the cognizance of the liability for supervision and management negligence.The jurisprudential basis of the principle of trust includes the theory of social equivalence,the permissible theory of danger and the theory of dangerous distribution.The basal theory of social equivalence is of no value theory,the judgment standard depends on the social ethics of the abstract danger theory;substrate allowed is Erfolgsunwert,which depend on the legal interests;distribution theory of dangerous points to the number of human attention obligation,as one of the two sides and the principle of trust.The theory of allowed dangerous and dangerous assignment theory,in essence,are made of natural science knowledge is widely used in industrial development risk and the utilitarian value of different positions,it is the value concept in criminal law "in terms of deformation".The systematic orientation of the principle of trust is closely related to the structure of the theory of crime.Because the two obligations of attention and foresight are not breakable.After excluding the foresight possibility by the principle of trust,we must exclude the subjective consequences,the duty of foresight and the avoidance of results.The application of the principle of trust is not very controversial in the negligence of supervision and management in the individual model.Industrial organization,medical team and other organizations have a clearer division of labor and efficient appeals than transportation,nor can they completely negate the application of the principle of trust.The upper bound of principles is applied qualitatively.In addition to the clear division of labor and the trustworthy premise in the form of evidence business capacity,the specific application conditions should also consider the substantive trust facts.The sixth chapter of the paper mainly expounds the feasibility of setting up the negligent dangerous offense in the accident crime.The criminal legislation of negligently dangerous offenders in Germany,Japan and other countries has been established.The issue of criminal jurisprudence has been interpreted from the question of whether the negligent dangerous crime can be established to judicial practice.The academic circle in China is still in the stage of discussion.The solution of this problem can be divided into two aspects: the theoretical level and the fact.From the criminal law theory,the crime was established including subjective and objective harm(containing dangerous behavior of the dangerous state),and the actual results belong to the behavior in the objective harm damage law,negligence and intentional subjective equally reprehensible,and negligence of punishment is the objective harm.The destruction of the dangerous state of legal interest is not less than the real harm results,so in theory the negligent dangerous crimes can be established.In combination with other disciplines of empirical research data on the system of China's production safety accident of the vertical trend has been improved,but the comparison is still grim,the current administrative system and economic development policy under the background of the premise of administrative law enforcement is not strict,poor effectiveness based on the accident crime of dangerous crimes have its necessity.