| Supervisory negligence is not a new type of negligence,but a special form of negligence with reduced possibility of foreseeing.The justification of the punishment of supervisory negligence lies in the moral requirement of maintaining social organic unity based on the division of labor.The significance of the supervisory negligence theory to the judicial practice of our country lies in increasing the punishment of supervisors and limiting the scope of punishment.Supervision negligence punishment does not violate the doctrine of responsibility,nor is it a typical example of prevention criminal law in the risk society.The judicial practice of our country shows the tendency of three-way supervision subject attribution,and there are some problems in practice,such as focusing on the division of responsibility rather than attribution,the different scope of attribution,the unclear standard of attribution and the fuzzy positioning of supervision negligence.The core of the problem is how to judge the result of supervision negligence,that is,in what sense the supervisor should be investigated for criminal responsibility by supervision negligence.There are many theoretical differences in the imputation path of negligent crime in the judgment of duty of care,act of execution,possibility of foreseeing and possibility of avoidance of results.In the imputation path of non-negligent crime,acting duty is not the same as duty of care,and there are repeated judgments.The normative imputation thought of objective imputation path is worth learning from.In order to connect with the judicial practice and the traditional criminal law theory in China,it is appropriate to adopt the objective imputation path based on the inherent fault element,that is,to judge the creation and realization of risk within the scope of maintaining the concept of negligent crime.In judging risk manufacturing,duty of care can be inferred from safety supervision and management norms,but in essence,it is a duty of care within the scope of normative protection purposes.For the judgment of breach of duty of care,we can create or raise the standard of danger not allowed by the law to carry out substantive grasp.In judging the realization of risk,the supervised intentional crime should be excluded from attribution,the substitution of obligation does not necessarily exclude attribution,and the principle of trust can be excluded from attribution based on the external mature operating environment. |
