Study On Duty Of Care Of Management And Supervisory Negligence

Enterprises are a vital force in China's economic and social development.They are an important force in creating more jobs,improving people's livelihood,and promoting entrepreneurship and innovation.China attaches great importance to the development of enterprises,and has introduced a series of policies and measures in fiscal system,taxation,finance,business environment and public services,which makes the " Masses entrepreneurship" to be the theme of the era.However,while the booming development of enterprises brings economic benefits,the problems of food safety,environmental protection and other corporate crimes have become “time bombs”,which are damaging the public interests.How to prevent the accident and investigate the responsibility of the accident has become the most prominent problem.The theory of management and supervision negligence is indispensable to the criminal responsibility of enterprises and related responsible personnel.However,the determination of breach of duty of care for negligence of management and supervision is controversial,which will inevitably affect the imputation of relevant responsible persons in practice.However,the determination of breaching duty of care for negligence of management and supervision is controversial,which will inevitably affect the imputation of relevant responsible persons in practice.In the trend of increasingly complicated risk society and social division of labor,how to investigate the criminal responsibility of the responsible personnel far away from the scene of the accident and how to prevent the occurrence of public hazards have more practical significance.This paper mainly analyzes the above contents in three chapters.The first chapter mainly discusses the current situation of management and supervision negligence theory,including the basic connotation of management and supervision negligence,the applicable object,as well as the specific scope of this paper.The causal relationship has the characteristics of indirectness and occurring in the field of business,which is the legal characteristic of the management and supervision negligence which is different from the theory of general negligence.The criminal legislation recognizes the criminal responsibility of the supervisors to investigate the negligence of supervision,which makes the theory of negligence of management and supervision has the basis for further study and discussion.The judgment elements of the establishment of negligence in management and supervision include the practice,causality and the application of the principle of trust.The core of the discussion is the duty of care of management and supervision.Based on analyzing the structure and nature of management and supervision negligence,a clear judgment of management and supervision negligence must be carried out around the duty of care of managers and supervisors.The essence of management and supervision negligence is the violation of the duty of care of management and supervision.It is due to the duty of care of management and supervision negligence and the general duty have a relationship of “special and general”,its particularity is manifested in the field of the fault occurring and the degree of the objective duty of care.The research on the duty of care of negligence in management and supervision should be carried out within the framework of the general duty of care of negligence,and the particularity of the former should be paid attention to in the research.Therefore,the research on the duty of care of management and supervision in this paper is based on the general theory of duty of care,and clarification of the structure of the fault is the key point of this paper.The second chapter mainly discusses the basis and content of the management and supervision of the duty of care from the perspective of the duty of care,also summarizes and analyzes the existing problems in the definition of the duty of care.The bases of the duty of care and the negligence of management supervision have the relationship of inclusion and included.From the perspective of the provisions of the criminal law of China,the management and supervision obligations seem to be explicitly stipulated by laws and regulations.However,combined with the reality,the ever-changing social development,and the emergence of corporate crimes,the idea of limiting the duty of care of management and supervision to laws and regulations seems increasingly unable to meet the requirements of the criminal law of contemporary social.The source of the duty of care of management and supervision is not only the provisions of laws and regulations,but also the practice of examining the business field from the perspective of essence,also the duty of care of management and supervision must exist according to certain standards.The determination of general negligent crime requires the possibility of foreseeing,through the degree of the possibility of foreseeing,the perception of objects,and the judgment standard of foreseeing,it limits the scope of the establishment of the negligent crime.On the one hand,the judgment of management and supervision negligence should also follow the requirement of foreseeing possibility,but the requirement of foreseeing possibility is difficult to adapt to the requirement of public hazard penalty such as fire and large-scale pollution.On the other hand,the specific content of the obligation to avoid the occurrence of the results should be judged in combination with the causes,occasions and other relevant objective factors.Reflecting on the above contents,it can be found that the specific foreseeable possibility is not specific,and the scope of the content of the objective duty of care remains to be determined.The third chapter mainly analyzes the role of criminal compliance in the management and supervision of negligence determination.Under the trend of the criminalization of the compliance of enterprises,it is feasible to take the compliance programs as the judgment basis for the determination of supervision and management duty of care from the perspective of supervision and management negligence theory.On the one hand,the theory of supervision and management negligence are most closely related to the compliance programs,and the basis and content of the compliance programs are related to the contents of the duty of care.Through the consideration of the compliance programs,it is helpful to get rid of the current dilemma of the identification of supervision and management duty of care.On the other hand,in the mode of organizational inhibition,promoting the establishment of compliance programs related to the management and supervision of the duty of care is in line with the general trend of the development of criminal compliance in China,and is the most powerful attempt to promote the establishment of compliance plans.Specifically,the maneuverability and specificity of the content of the compliance programs can define the scope of the duty of care of management and supervision,it also limits the identification of the negligent crime of management and supervision.In addition,it can play a role in distinguishing the management and supervision responsibilities between enterprises and relevant natural persons.Considering that the nature of the compliance programs is to determine the code of conduct,when an enterprise has an effective compliance program,it should deny the existence of its management and supervision responsibility,but the absence of a compliance plan cannot be the full reason for the enterprise to assume responsibility.We must comprehensively judge its management and supervision duty of care in combination with the actual operation scope and organizational system of the enterprise.