On The Duty Of Care In The Crime Of Supervisory Negligence

With the arrival of risk society,the crime of supervisory negligence has attracted increasing attention.In the theoretical circle,more and more scholars study the theory about the crime of supervisory negligence.And in the practical circle,there are more and more cases in which perpetrators are convicted of the Crime of Major Accident Liability or the Crime for Environmental Supervising and Managing Dereliction of Duty because of supervisory negligence.Generally recognizing,the essence of negligent crime is the breach of duty of care.As a special type of negligent crime,the crime of supervisory negligence also focuses on duty of care.There is the supervisees' misconduct between the supervisors' negligence and harmful results,so the duty of care in the crime of supervisory negligence is special and complicated when compared with ordinary negligent crime,and existing researches haven't reached a unified opinion on the crime of supervisory negligence with judicial practice.Therefore,in order to determine whether the crime of supervisory negligence is committed or not correctly,it is necessary to study the duty of care in the crime of supervisory negligence.The full text of about 43000 words,in addition to the introduction and conclusion,main body is divided into four parts.The first part is the introduction about the duty of care in the crime of supervisory negligence.This part rethinks the definition of the crime of supervisory negligence in the theoretical circle.And it concludes that meaning of supervisory negligence is narrow than management negligence,which should be included in the management negligence.Supervisees' misconduct can be a negligent act,as well as an intentional act when determining whether the crime of supervisory negligence is committed.Then this part further points out that the crime of supervisory negligence should be based on the new negligence theory.What's more,this part analyses the concept about the duty of care in the supervisory negligence from subject internal mind and objective external behaviors.The second part is mainly about sources of the duty of care in the supervisory negligence.Usually,the crime of supervisory negligence happens in the field of public affairs and the field of non-public affairs,and responsibilities of supervisors in different fields are different.As a result,according to the fields above,sources of the duty of care in the supervisory negligence should be divided into sources of the duty of care for public official and sources of the duty of care for non-public official.Part three concerns with content of the duty of care in the supervisory negligence.That is,supervisors should implement what supervisory duties.The content should include duty of result foresee and duty of result evasion.Duty of result foresee not only means that supervisors should foresee harmful results caused by their conduct indirectly,but also refers to that supervisors should foresee supervisees' misconduct.In addition,the supervisors' forecast about harmful results should be relatively specific.While duty of result evasion requires supervisors form the thought of avoiding harmful results and take measures to avoid harmful results before the phase of acting by supervisees,in the phase of acting by supervisees and after the phase of acting by supervisees,except being careful.The fourth part focuses on performance and exemption of the duty of care in the crime of supervisory negligence.This part points out that supervisors' attention ability consists of ability to foresee and ability to avoid firstly.To judge attention ability,subjectivism should be combined with eclectism,which can determine whether supervisors can perform duty of care and whether they violate duty of care reasonably.Then this part analyses effectiveness of the performance of duty of care by supervisors,which concludes that supervisors should bear the criminal responsibility of supervisory negligence if they have ability to perform duty of care but fail to perform or perform incompletely in the case of possibility of foreseeing or evading existing.At last,this part puts forward appliance principle can be applied to supervisory negligence to exempt duty of care.And it analyses the scope of application of appliance principle which includes parallel supervisory relationship outside the organization,parallel supervisory relationship inside the organization and guiding supervisory relationship of vertical supervisory relationship inside the organization.Besides,conditions of application of appliance principle should be explained in three aspects: a clean supervisor,a qualified supervisee and a community of shared interests and losses formed between the supervisor and the supervisee.