Judgement On Duty Of Care Of Supervision Negligence In The Crimes Of Malfeasance

In modern society,risks are everywhere,and all kinds of safety accidents occur frequently.At present,in China’s judicial practice,the general treatment of safety accidents is to punish the direct actor with the corresponding responsibility accident charges,to investigate the so-called "leadership responsibility" of the supervisor.The criminal responsibility of the crime of dereliction of duty,dereliction of duty in food supervision or dereliction of duty in the prevention and control of infectious diseases is less investigated.However,this approach does not achieve a reasonable allocation of risk among various participants.In the fields of production safety,environmental hazards,food and drug safety,infectious disease prevention and control,we should not only urge the direct participants to fulfill their duty of care,but also urge the supervisors as indirect participants to fulfill their duty of supervision.The theory of supervision negligence can provide a theoretical basis for investigating the criminal responsibility of supervisors in the crime of negligent dereliction of duty.The essence of supervision negligence is that the actor violates his duty of care in the field of supervision,to grasp the duty of care is an important starting point for the study of negligent dereliction of duty.Based on the study of the duty of care in the theory of negligent crime and the theory of supervisory negligence,this paper further discusses the duty of care in the supervision of negligent dereliction of duty,the purpose of this paper is to provide a solution to the problem of responsibility identification in the field of dereliction of duty in practice.And also helps to eliminate the problems in practice "The farther away from the scene,the smaller the responsibility" of the judicial strange phenomenon.In addition to the introduction,this paper mainly includes three parts:The first part analyzes the basic connotation duty of care of supervision negligence in the crimes of malfeasance,mainly including its meaning and basis.According to the general theory of criminal law,the essence of negligent crime is that the actor violates his duty of care.Chinese criminal law scholars,adhering to the tradition of seeking precise concept definition in Chinese academic circles,focus on grasping the connotation of duty of care from the concept.The duty of care of negligent dereliction of duty in supervision refers to the basic requirements of the subject of dereliction of duty in accordance with the law,duty,habit and common sense.Doing or not doing something,actor has the responsibility to be careful to prevent harmful social consequences.There is no agreement between Chinese and foreign criminal law theories on the basis of the duty of care in negligent crime.To judge the duty of care of supervision negligence in the crimes of malfeasance,we should adopt the dual structure mode of combining the formal basis and the substantive basis.That is to say,on the basis of formal basis judgment,the source of duty of care is limited by substantial basis judgment.The form basis is the legal supervision obligation,the supervision obligation based on the duty requirement and the supervision obligation based on the habit and common sense.In order to avoid the expansion of the criminal circle caused by the determination of whether the actor has the obligation of supervision only according to the form.The basis of supervision obligation should be limited by the principle of allowed danger and the principle of trust.The second part mainly clarifies the specific structure about duty of care of supervision negligence in the crimes of malfeasance,affirms that it includes the duty of foreseeing the result and the duty of avoiding the result.However,due to the particularity of supervision negligence in the crimes of malfeasance,the content of the duty of care should be the unity of the relatively abstract duty of foreseeing the result and the duty of avoiding the result.The specific structure of the duty of care in negligent crime is also called the content of the duty of care in negligent crime.There are three theories in our country:against the theory of foreseeing obligation,the obligation of foreseeing results,the unification of the obligation of foreseeing result and the obligation of avoiding result.But when it comes to supervision negligence in the crimes of malfeasance,its duty of care should be the unity of the relatively abstract duty of foreseeing the result and the duty of avoiding the result,in which the duty of avoiding the result is the core content.Whether the supervisor should have foreseen but failed to foresee the negligent act and its harmful result of the supervised,or has foreseen but credulously believed that the negligent act and its harmful result of the supervised can be avoided,all of them should be criticized by criminal law for failing to fulfill the obligation to avoid the occurrence of final harmful results.There are three reasons why it is a relatively abstract obligation to foresee the result.First,it has a certain philosophical foundation.Secondly,the way to realize the violation of the supervisor’s norms has double indirectness.Third,taking the crime of dereliction of duty in the prevention and control of infectious diseases as an example,we can draw this conclusion by analyzing individual crimes.In the crime of negligent dereliction of duty of supervision,the supervisor’s obligation of avoiding the result means that the supervisor should take necessary measures to prevent the supervised from committing negligent acts due to his negligent supervision,which will cause harmful results.It includes two aspects:First,to avoid the negligent behavior that the supervised may carry out because of his negligent behavior of supervision;Second,avoid the harmful results that may be caused by the above behaviors.The third part mainly discusses the judgment standard of the violation of the duty of care of supervision negligence in the crimes of malfeasance.Attention ability includes foresight ability and avoidance ability.In the case of supervision negligence in the crimes of malfeasance,the "Should be foreseen" in negligent dereliction of duty requires the supervisor to have the subjective ability to foresee that the supervised may commit negligent acts and cause harmful results due to his negligent supervision;In the overconfident negligent crime,the supervisor has foreseen subjectively that the supervised may carry out negligent behavior due to his supervision fault,and then cause harmful results,"Avoidable" requires the supervisor to have the ability to avoid the harmful result objectively.The duty of care is not based on the ability of care.The logic of the violation of duty of care is that the actor has a duty of care,and when he has the ability to perform the duty of care,the harmful result occurs because he fails to perform or does not perform it correctly.As far as the negligent dereliction of duty of supervision is concerned,the judgment of the violation of duty of care should adopt the revised objective standard theory.If according to the revised objective standard theory,the supervisor has the ability of attention,but in fact he doesn’t use the ability of foresight or avoidance to take necessary avoidance measures,and makes the supervisee to carry out the negligent behavior,finally leads to the occurrence of harmful results.It is certain that the supervisor has violated his duty of supervision.