Research On The Duty Of Care In The Theory Of Crime Of Supervisory Negligence

Modern society is a society accompanied by wealth creation and risk production system.There are always large or small hidden dangers under the appearance of material abundance and economic prosperity,which requires people engaged in related business to maintain a high degree of attention and caution at all times,in order to prevent danger from turning into reality.In recent years,China's various types of large-scale serious accidents occur frequently,mine production,food and drug production,construction field,storage of dangerous goods in port warehouses,enterprise chemical production and other aspects have been very "typical" incidents.At first glance,these accidents are either caused by illegal violations by direct actors or by natural events,but there are often negligence and abuse of power and dereliction of duty by the relevant responsible personnel behind the direct actor and natural events.How to make the proper distribution of criminal illegal attribution in plural behavior or plural reason is the problem that the theory of crime of supervisory negligence tries to solve.The crime of supervisory negligence is a kind of phenomenon form of negligent crime,and the supervisory negligence theory is not divorced from the common principle of criminal negligence theory,but supervisory negligence has its own characteristics,which will bring challenges to the study of criminal negligence theory to a certain extent.From a positive point of view,these challenges are in fact a perfect window to examine the criminal negligence theory.Violation of the duty of care,as the core of the illegality of negligent crime(including crime of supervisory negligence),plays a "connection" role in the determination attributing the result of the constituent elements to the act,and is the essence of the criminal negligence(including the supervisory negligence).This paper attempts to re-examine the violation of the duty of care in the field of crime of supervisory negligence,and advocates that criminal negligence is a violation of the actor's duty to avoid the result.Accordingly,the supervisory negligence means that the supervisor violates the duty of care,or rather refers to the supervisor's violation of the duty to avoid the result.In order to demonstrate this central point of view,this paper is divided into five parts to discuss the relevant issues.The first chapter is "the raising of the duty of care in crime of supervisory negligence".It mainly discusses the concept of supervisory negligence and expounds the status of the duty of care in crime of supervisory negligence.This paper investigates the criminal practice of crime of supervisory negligence in Germany and Japan,and makes a comparison between theory of crime of supervisory negligence in Germany and Japan,and tends to adopt the research approach of the theory of crime of supervisory negligence in Germany,that is,not deliberately distinguishing the so-called narrow sense of supervisory negligence and management negligence,but taking whether supervisors themselves violate the duty of care as the central issue,and demonstrating the supervisory negligence and its violation from the perspective of requirement to avoid the result clearly.Conceptually,supervisory negligence refers to the breach of the duty of care by the supervisor,or rather the breach of the duty to avoid the result by the supervisor.From the position of duty of care,the breach of duty of care is the core of the illegality of negligent crime(including crime of supervisory negligence).Unlike intentional crime,negligent crime lacks the will to lead to the result of constitutive elements.Therefore,only when the result of constitutive elements is triggered by the actor's breach of duty of care can the result be normatively "locked" in the actor.That is to say,in judging the illegality of negligent crime(including crime of supervisory negligence),the duty of care takes the place of the will of the actor and plays the role of guiding the illegal attribution.In addition,the duty of care and the duty to act are neither mutually exclusive nor mutually inclusive,and they may only coincide within the scope of negligent omission.The second chapter is "the core of the illegality of negligent crime and the structure of criminal negligence",focusing on why violating duty of care is the core of the illegality of negligent crime,and on the structure of criminal negligence.This article is thereupon divided into three parts: first,criminal negligence is a purely illegal element.The view of criminal negligence as the element of responsibility is faced with many doubts,and the shift of criminal negligence from level of responsibility to the illegal constituent elements has become inevitable.The two-level theory holds that criminal negligence has dual characteristics as both illegal form and form of responsibility,but it cannot really distinguish between illegal negligence and negligence as responsibility,and the theoretical distinction – if there is-is difficult to be really implemented in reality.The two-level theory focuses on the subjective foreseeable possibility of the actor in the responsibility level,but it encounters multiple difficulties in identifying such foreseeable possibility.In order to overcome the above shortcomings of the two-level theory and coordinate the status of the criminal theory system of intent and negligence,criminal negligence should be regarded as a purely illegal element.Secondly,the theory of objective attribution of criminal negligence as a purely illegal element is not worthy of total acceptance.The crux of the theory of objective attribution is the problem of special cognition,which is a "barrier" that the theory of objective attribution should not pass.Moreover,the concepts of "risk creation" and "risk promotion" in objective attribution theory are suspicious of being too hollow and have the risk of being filled at will.Finally,the construction of criminal negligence centered on "breach of duty of care".Negligence is a violation of the norms of conduct-the unification of the norms of evaluation and norms of decision.In the final analysis,it is a violation of the norms of care within the scope of protection of the constituent elements of criminal law.This violation must have the relevance of the attribution of result.In short,negligence is a violation of the norms of care which is related to the attribution of the result of the constituent elements,that is,of the duty of care which aims at avoiding the result of the constituent elements.The third chapter is "the content of the duty of care in the theory of crime of supervisory negligence",which aims to clarify that in the theory of crime of supervisory negligence,the content of the duty of care is not the duty of foreseeing the result,but the duty of avoiding the result.The doctrine of foresee-obligation is confronted with great difficulties such as contradiction of the logic of blame,ambiguity of function orientation,controversy of foreseeable content and degree,and it cannot serve as the standard for the identification of criminal negligence at all.From the perspective of the status of the criminal theory system,the foreseeable possibility of result only excludes the completely abnormal causal process to a minimum extent,and its role is equivalent to that of the equivalent causal relationship.Therefore,the foreseeable possibility of result is not the content of criminal negligence,although it is the premise of attributing the result of the constituent elements to the act and an important part of the evaluation system of the illegality of crime(including intentional crime).The criminal negligence theory should be constructed with the duty of avoidance of result as the center.In the crime of supervisory negligence,the actor's duty of care is essentially determined according to the result avoidance measures that need to be taken under the specific circumstances,and the supervisory negligence is clearly manifested as a violation of the duty to avoid the result.The fourth chapter is "Violation of the duty of care in crime of supervisory negligence",focusing on the construction of the criteria for the identification of supervisory negligence.Specifically,the inspection steps of supervisory negligence are as follows: First,the preliminary determination of the supervisor's breach of the duty to avoid the result(the principle of trust is involved here).First of all,we should look at what measures the supervisor needs to take to avoid the result at the time when the result occur,so as to judge the possible duty to avoid the result that the supervisor may bear;then we should judge whether the possible duty to avoid the result are within the scope of supervisor's authority and attention ability;finally,we preliminarily determine whether the supervisor has violated the duty to avoid the result according to the principle of trust.The second step is the judgment of possibility to avoid the result(in which the theory of legal alternative act intervenes).The result of constitutive elements can only be attributed to the supervisor's breach of duty of care when it is determined that it can be avoided or almost determined that it can be avoided under the legal alternative act.When the avoidability of result can be easily identified,the illegal attribution of the result of the constituent elements is naturally no problem.When the avoidability of result is not easy to identify,criminal judicial practice must aim at the identification of avoidability.Only when the avoidability of result is almost certain,can the illegal attribution of negligent crime be established.The third step is to clarify the normative protection purpose(the theory of the protection purpose of attention norm and the theory of the protection purposes of constitutive elements are involved here).The essential function of the protection purpose of attention norm is to directly exclude the illegal attribution of the result of the constitutive elements which are totally unrelated to the violation of the supervisor's duty of care;the main function of the protection purpose of the constitutive elements is to clarify the legal interests of specific criminal norms,and to influence the judgment of whether the result is illegal or not.The fourth step,on the basis of the first three steps,finally determines the breach of the supervisor's duty to avoid the result and the establishment of the supervisory negligence.The fifth chapter is "the practice of supervisory negligence theory in China",focusing on the criminal legislation and judicial practice of crime of supervisory negligence regulation in China,and giving a programmatic and framework explanation on the application of supervisory negligence theory.From the perspective of criminal law legislation,crime of supervisory negligence in China can be divided into crime of "clear-cut culpability" supervisory negligence,crime of "violation of rules" supervisory negligence and crime of "serious irresponsible" supervisory negligence.The latter two types can be collectively called crime of "disputed culpability" supervisory negligence.It is not inappropriate for China's criminal judicial practice to basically abandon the foresee-obligation(the foreseeable possibility of result)when dealing with crime of supervisory negligence,especially the crime of "disputed culpability" supervisory negligence.But the problem is that our criminal judicial practice often does not pay attention to the normative relevance between normative protection purposes,the possibility of avoidance of result and the result of the constituent elements.This paper suggests dividing the supervisory relationship into guiding supervisory relationship,appointing supervisory relationship and supervising and controlling supervisory relationship,and typically analyses the application of supervisory negligence theory in different supervisory relationships.