Study On The Theory Of Supervisory Negligence

In recent years,the frequent occurrence of major safety accidents in various industries has brought immeasurable losses of benefits to the state,society and the people,for which it is necessary to prevent them by strengthening legal regulations and improving technical safeguards.These major safety accidents are often associated with negligent behaviour on the part of those in charge of the enterprise,or even the staff of the relevant administrative department.Such negligence is not a direct cause of the accident,but it is an important one.However,the lack of stereotypical implementation of the relevant offences and the indirect nature of the causal relationship due to the involvement of human factors in the case can easily lead to two unjust extremes in the judicial handling of such cases-either the principle of self-liability is overstepped,resulting in an inappropriate expansion of the scope of punishment,or the appearance of "The greater the power,the less the responsibility" is a strange phenomenon.The injustice of the judicial treatment forces us to consider how to accurately define the scope of criminal responsibility for such crimes.The theory of supervisory negligence was developed to solve the problem of the negligent responsibility of supervisors and managers,and is of great significance in guiding the correct handling of the criminal responsibility of these responsible persons.This article is divided into five chapters,using empirical analysis,literature analysis and comparative research,to develop a systematic analysis of the theory of supervisory negligence around the current judicial situation of supervisory negligence,the connotation of the concept of supervisory negligence,the constitutive elements of supervisory negligence,and the judicial improvement path of supervisory negligence.The first chapter introduces the background of the supervisory negligence theory and its social significance,and introduces the current development of the supervisory negligence theory in Japan and Germany,while pointing out the current situation of the judicial application of the supervisory negligence theory in China.Chapter 2 takes some safety accidents that have occurred in China in recent years as examples,and specifically analyses the reasons for the high incidence of this type of crime cases(the relevant enterprises and units know the law,disregard the enterprise regulations and management system,and violate the law in production and operation;the lack of supervision by the relevant administrative organs)and the shortcomings of judicial decisions-firstly,the lack of the same criteria for determining the subject;secondly,the The criteria for determining causality in similar cases are different;thirdly,there are often situations where administrative responsibility is substituted for criminal responsibility.It is concluded that only by clarifying the connotation of supervisory negligence and its constituent elements can the subject of responsibility and criminal liability for this category of crime be better determined.Chapter 3 develops the discussion around the concept of supervisory negligence and the essential construct of the negligent offender.First,it introduces and compares the broad and narrow concepts of supervisory negligence and,by examining the main points of judicial decisions,it concludes that supervisory negligence is unnecessarily distinct from managerial negligence.It is argued that supervisory negligence and managerial negligence overlap,with a different focus,but that they are essentially the same.At the same time,the crime of supervisory negligence is compared and analysed with that of unit crime,and it is argued that the two cannot be simply equated.Secondly,the three theories of negligence,namely the old negligence theory,the new negligence theory and the new negligence theory,are analysed in detail,and it is concluded that the "duty to avoid the result" of the new negligence theory should be taken as the basic position of the supervisory negligence theory.Chapter 4 discusses in detail the elements of supervisory negligence under the essential construct of the new negligence theory established in Chapter 3.The first requirement is that the supervisor owes a duty of care to the harmful result,the content of which is the duty to avoid the result.Secondly,the supervisor must have acted in breach of the duty of care in such a way that there is a real risk of harm occurring,both by action and by omission.Finally,there must be a causal link between the supervisor’s supervisory negligence and the result of the damage.When the intervening factor is the negligent act of the person under supervision,the causal link is established.When the intervening factor is a natural factor,it is determined by the general process of direct causation.Chapter 5 contains a few suggestions for improvements in the identification and treatment of supervisory negligence offences.The first is to affirm the possibility and justification of the application of the principle of reliance in the context of negligent supervision,and to propose the conditions for its limited application.Secondly,in view of the practical dilemma that the hierarchy of supervisory subjects is unclear,it is argued that the subject of supervisory negligence should be limited to the supervisory leadership relationship between the upper and lower levels,and the "three qualities" of relevance,irregularity and independence are used as general principles to determine the scope of the subject of supervisory negligence.Finally,taking into account the current characteristics of the high incidence of major safety accident cases and the needs of social governance,it is proposed that the criminal regulatory path of "strict" should be maintained,so as to ensure that cases are adjudicated in a timely and fair manner.