| With the rapid development of science and technology in the field of human production and life,while people are enjoying the achievement of these technological developments,they are threatened by all kinds of disaster accidents all the time.Many disasters and accidents were likely caused by direct practitioners,however,by exploring its basic reason,we can find that the real reason is the poor supervision of the upper supervisors.Under the background of risk society,for the sake of safeguarding the lives and property of the vast majority of the people,it is necessary to impose criminal sanction on the supervisory negligence of supervisors who have an indirect causal relationship with the accident.Although China’s criminal law does not explicitly use the concept of supervisory negligence,the theory of supervisory negligence has not been integrated into the theory of criminal law in our country either,the criminal legislation in our country provides a space for the judicial application of the theory of supervisory negligence.By discussing the basic theoretical problems of supervisory negligence and combining the theory of supervisory negligence in the criminal field of our country,the author will finally put forward some ideas of his own.Chapter One is about the overview of the supervisory negligence.Firstly,by comparing various theories about the concept of supervisory negligence,the author points out that we should take the broad concept of the supervisory negligence,besides the narrow supervisory negligence,it also includes the management negligence,theformer emphasizes the supervision to humans,the latter emphasizes the management to objects,but this is not absolute.Supervisory negligence has four characteristics which are single,multiple,indirect and specific.Secondly,by comparing the concept of common fault and fault competing,the author concludes that supervisory negligence is a kind of fault competing just because of no common duty of care.Finally,by studying the development of the traditional theory of fault in Germany and Japan,we concludes that the new-new negligence theory and risky society are the two foundations for supervising negligence.Chapter Two is about the construction of the supervisory negligence.We should make it clear that the essence of the supervisory negligence is to violate the duty of care.Secondly,it points out that the violation of the duty of care contains three elements: the obligation of attention,the ability of attention and the neglect of attention.The content of the duty of care includes the foreseeable obligation of the result and the duty of avoiding the result,the former is vague about the degree of foreseeability to the final result of the hazard,while it is specific about the degree of foreseeability to the supervisee’s direct negligence;sources of the duty of care include laws and regulations,regulatory framework and conventions,however,there is a limit to the application of conventions.The ability of attention is the unity of foresight ability and avoidability,to judge the ability of attention,we should use the standard of the general level of cognition of the members in the social category to which the actor belongs.The neglect of attention has two patterns of manifestation which are careless supervision-negligence and overconfident supervision-negligence.Chapter Three is about the application of supervisory negligence in the criminal field of our country.Firstly,by combing the manifestation of supervisory negligence in the criminal legislation of our country,we can find that our country’s criminal legislation provides a space for the judicial application of the supervisory negligence.Secondly,through the research on the relevant judicial issues,we can draw the following conclusions:supervisory negligence is mainly used in business areas,for civil servants,it is different from the ordinary public service negligence;the principle of trust can generally be applied to supervisory negligence,but it has restrictedcondition;supervisory negligence is closely linked to unit crime;supervisors are ususally free from blame when supervisees commit intentional crime,however,in the case of individual management errors,the supervisor’s fault liability should still be investigated.In addition to giving a summary of the status and role of the supervisory negligence theory in our country,the conclusion also focuses on the actual supervisory negligence phenomenonin business activities and the problems in the investigation of the results.Based on the importance of the theory and combining national conditions,the essay puts forward some advices in conviction and the sentence leveling. |
