Research On Judicial Cognizance Of The Crime Of Dereliction Of Duty

In judicial practice,there exists the phenomenon of consequential liability when the crime of dereliction of duty is identified.As long as serious consequences occur,the relevant personnel will be investigated for their responsibility,and there is not much concern about whether the perpetrator has committed dereliction of duty.At the same time,the causal relationship,which has been discussed more by the theoretical circles,is often avoided in judgments.In the case selected in this paper,there are great differences between the prosecution and the defense on whether Shu Mou constitutes the crime of dereliction of duty,and the main focus of controversy is the determination of the nature of the act and the causal relationship between the act and the result,which are two issues that have not been well explained in the case trial.Therefore,this paper tries to study the judicial determination of the crime of dereliction of duty by analyzing the controversial focus of the case.In order to get some inspiration to solve the difficult problem of the determination of dereliction of duty crime.In addition to the introduction,there are about 23 000 words in the text,which is divided into four parts:In the first part,this paper briefly introduces the basic situation of Shu Mou's dereliction of duty case,and analyses two different opinions on the determination of the result of the case.On this basis,it concludes two controversial focuses of the case:one is whether Shu Mou has committed dereliction of duty;the other is whether there is a causal relationship between Shu Mou's behavior and the harmful result in the sense of criminal law.The second part,according to the controversial focus summarized above,analyses the legal issues involved in this case.For the identification of dereliction of duty,this paper argues that it should be carried out in three steps.First,we should clarify whether the specific matters belong to the scope of the actor's duties,then judge whether the actor has fulfilled his duties,and finally analyze whether the performance of his duties is correct.As for the determination of causation in the crime of dereliction of duty,this paper holds that the determination of causation should be divided into two levels: factual level and legal level: judging whether dereliction of duty provides conditions for the occurrence of harmful consequences from theviewpoint of condition theory;judging whether causation is equivalent according to the purpose of criminal law at the legal level.The third part is based on the legal analysis of the case and draws conclusions.Investigation and punishment of unlicensed operation of oil factory belongs to Shumou's duty scope.Shumou should supervise and lead the performance of specific undertakers.Shumou has not fulfilled the duties of supervision and leadership.Therefore,Shumou's behavior belongs to the type of negligence of "non-performance of duties".Shu Mou's "failure to perform his duties" provides conditions for the harmful consequences of gutter oil flowing to the market,and the identification of causality conforms to the legislative purpose of the crime of dereliction of duty.Therefore,there is a causal relationship between Shu Mou's dereliction of duty and the harmful consequences with criminal law significance.The conclusion of this paper is that Shumou's behavior in this case constitutes "non-performance of duties" type of negligence,and there is a criminal causal relationship between Shumou's negligence and the harmful consequences of gutter oil flowing to the market.The fourth part summarizes two enlightenments to solve the difficult problem of the determination of dereliction of duty crime through the analysis of this case: first,when determining whether the perpetrator has committed dereliction of duty,we should first define the scope of responsibility of the perpetrator,then analyze whether the perpetrator has fulfilled his duty,and finally analyze whether the performance of his duty is correct;second,when determining the causal relationship,we should first analyze the scope of responsibility of the perpetrator.Whether the act in fact provides conditions for the occurrence of harmful consequences,and then judges whether the causal relationship is equivalent according to the purpose of criminal law.