| with the rapid economic development,the phenomenon of public hazards that endanger human health and living environment comes into view.In the field of products,defects cause harmful accidents occur frequently.However,most of the product defects are caused by negligence,because the current "Criminal Law" does not specifically provide for the criminal negligence crime of defective products,resulting in the relevant subjects to pursue criminal liability is more difficult.However,there is the way,we can apply the general crime of negligence,namely,negligence causing serious injury,negligence causing death to pursue its criminal liability,in order to curb the frequent occurrence of harm caused by defective products,which is also in Germany and Japan there are precedents to follow.To investigate the criminal negligence responsibility of defective products,first of all,we need to explore the theoretical basis of negligence.The essence of negligence is the breach of duty of care.Regarding the duty of care,there are theories of old negligence theory,new negligence theory,modified old negligence theory,and super new negligence theory on the structure of the negligence offense;As for the content of the obligation,there is a debate between the obligation to foresee the result based on the possibility of foreseeing the result and the obligation to avoid the result based on the possibility of foreseeing the result and the possibility of avoiding the result.In terms of the degree of foreseeability of results,there are doctrines of specific foreseeability,sense of fear and dangerous foreseeability;determining the possibility of result avoidance needs to be considered in conjunction with the possibility of result avoidance in an ex ante sense and in an ex post sense;the introduction of the principle of permissible danger and the principle of reliance to limit the duty of care and prevent the improper expansion of the scope of punishment for negligence.In the field of defective product negligence crimes,it is more appropriate to define the duty of care for negligence offenders by the standard of the super new negligence theory and modified sense of danger.The second,analyzing the facts and judgments of the German leather spray case and the Japanese Morinaga milk powder case,we can summarize the duty of care of product manufacturers and sellers by specifying the possibility of result foreseeing,the duty of result avoidance,the permitted danger,the principle of reliance,and the liability negligence of negligence offenders with cases.Finally,according to the inspiration of the extraterritorial experience,in the typical Sanlu milk powder case in the field of defective product accidents in China and the widely publicized self-driving car crash in recent years,we can explore the justification and possibility of pursuing the criminal negligence responsibility for the relevant behaviors. |
