Duty Of Care To Supervise Negligence In Safe Production

Because of the destructive nature of the crime of liability accident,in addition to the direct operators,managers and supervisors should also be the subject of responsibility,which involves the identification of management and supervision faults.In the past,there were two defects of wrongful punishment and omission of punishment in the field of responsibility accident crime in the field of safety production.Wrongful punishment instructed those without supervision and negligence to take responsibility,and omission of punishment meant that those with supervision and negligence evaded criminal responsibility.These two defects are essentially due to the lack of theoretical guidance on practical issues,and the key lies in the lack of research on the theory of supervisory negligence.By sorting out relevant disputes,it provides theoretical support for the accountability of managers and supervisors in safety production accidents,and defines the scope of responsibility to avoid wrong or omission of punishment.Although the theory of supervisory negligence has been discussed a lot in our country,the controversies in it have not been reduced.The core problem of negligent crime,that is,normative investigation,has not gone deep.The supervision negligence originates from the Japanese criminal law theory.On the basis of defining the concept and type of supervision negligence,the characteristics of supervision negligence and general negligence are analyzed.Violation of duty of care is the essence of negligent crime,and supervision negligence is a sub-proposition of negligent crime.Of course,the focus of discussion should be on duty of care.The duty of care derives from legal provisions,professional norms and norms of public life.Specific to the field of supervision negligence,it includes laws and regulations,industry normative business division,and supervision obligations arising from industry habits.The basis of the duty of care and the scope of the subject of the supervision fault are actually a problem and the key to accountability.The New Negligence Theory takes departure from the norm as the basis for judging the violation of duty of care,which leads to criticism of aggravating administrative violations.However,administrative violations are only necessary but not sufficient conditions for the judgment of criminal violations.After the establishment of administrative violations,it is necessary to judge whether the crime is established or not based on the theory of criminal law.Rules such as code of conduct or operating procedures provide a cultural basis for the investigation of the content of the result avoidance obligation,so the criminal law has not become a vassal of administrative regulations.To discuss the duty of care to supervise negligence,we should first go back to the construction of negligent offenders.Around the structure of negligence,there are old negligence theories,new negligence theories,and new and new negligence theories.The debate on the construction of negligent offenses between the old and new theories of negligence remains unabated.Which theory is used as the construction of negligent offenses involves the content judgment of duty of care.The content of the duty of care includes the content of the obligation to foresee the result and the content of the obligation to avoid the result.In the supervision negligence crime,the former refers to foreseeing unsafe operations or unexpected situations caused by one’s own actions,which lead to liability accidents,and the latter refers to the former.On the basis of what measures the actor should take to avoid the consequences.Based on the defects of the old negligence theory and the outstanding advantages of the new negligence theory,this paper takes the new negligence theory as the standpoint,and takes the violation of the duty of avoidance of results as the basis for the determination of the crime of supervision negligence.The existence space of the reliance principle should be affirmed in the supervision negligence,but it needs to be based on the clear division of labor and the existence of a substantial reliance relationship,and there is also room for the application of the reliance principle in the parallel supervision relationship.Whether the ability to pay attention should be examined objectively,subjectively,or compromised is still debated in the academic circles.Safety production,such as mining production,chemical production,etc.,requires special skills and certificates to be employed.For example,if the perpetrator does not have a certain attention ability but works as a safety production manager or supervisor,it just violates the requirements of the job responsibilities and is beyond the responsibility.Negligence,shall still bear the responsibility of supervision negligence.Therefore,in the crime of liability accident in the field of safety production,the ability to pay attention to the negligence of management and supervision should be judged based on the objective theory.