The Application Of Supervisory Negligence Theory In Malfeasance Crime

Supervisory negligence theory, originated from Japan, was proposed against the actor's negligent liability with supervisory responsibility for major hazard incidents, has experienced for nearly thirty to forty years'theory development, and gradually became a relatively perfect negligent liability theory, affording an example to other nations. In recent years, various accidents out of negligence occur frequently, which caused tremendous losses in the lives and properties of the people, even created unwholesome influence on our reputation. There tends to be negligent malfeasance in administrative supervision behind these disasters. However, the study of malfeasance in specific cases in the current criminal law research is insufficient, and clampdown in the judicial practice is far from enough, which badly affects the normal administration and the general public for the country's trust.There are many similarities between the basis content and application of supervisory negligence theory and our provisions of malfeasance crime. Based on the constitution of crime in our country, it's advisable to introduce supervisory negligence theory to define malfeasance crime, especially to determine the responsibility of negligent malfeasance. Full text is divided into four parts as follows:The first part is the overview of supervisory negligence theory, making a briefly introduction to the content, development, and constitutions of supervisory negligence theory. The second part mainly discussed the bases of both reality and theory. Firstly, based on our judicial practice, it's necessary and urgent to introduce supervisory negligence theory in our current situations, after analyzing the occurrence of various accidents out of negligence with a rapid economic development both in Japan and in China. Secondly, comparing with the objective imputation theory, there are possibilities and superiorities in drawing lessons from supervisory negligence theory, especially both China and Japan sharing the similar political backgrounds, humanistic traditions and etc.The third part emphasizes the application of supervisory negligence theory in malfeasance crime. By means of comparison and analysis, we can make distinguish between supervisory negligence theory and the malfeasance crime in our criminal law by comparing the subject, subjective, object and objective elements, which constitute the foundation of introduction. Then, the application of supervisory negligence theory to determine the criminal liability is mainly elaborated, where we should focus on the negligence in the subjective element, and the accomplishment conduct and the casual nexus in the objective element.The last part makes a proposal based on the current situations, such as lightening penalty and the application of the suspension of punishment in judicial practice. It should introduce crime of supervisory malpractice or the theory of potential damage offence of supervisory malpractice, and strengthen the punishment of malfeasance crime to find a way out of the dilemma of inadequate clampdown to malfeasance.