【作者】 肖冬梅；

【导师】 张旭；

【作者基本信息】 吉林大学 ， 刑法学， 2009， 博士

【摘要】 “监督过失”语舶来于日本,此类犯罪于我国司法实践中常见,其法律适用刑法典有据可查,唯阙于理论之研讨。随经济迅猛发展,伴增多之风险,过失犯罪跳跃式增长而成为刑法理论关注的话题,监督过失问题亦由此受到青睐。监督过失犯罪问题之域外研究以犯罪过失为研究视角;以不作为犯罪为研究视角或以法人刑事责任为研究视角,等等。我国学者以领导者责任、注意义务亦或具体罪名为研究视角,可谓见仁见智。笔者将监督过失犯罪作为一个犯罪类型,试图初步构建监督过失犯罪构成的解释体系,为监督过失犯罪的基础理论研究略尽绵薄。本文共七章。第一章监督过失犯罪界说。主要对监督过失犯罪进行概念性诠释。第二章监督过失犯罪不同研究路径。主要对各国理论不同视角研究状况的简要介绍。第三章监督过失犯罪刑事责任的理论根据。主要立足当代社会,从当代社会的核心品质、国家管理和行为人的主观恶性与客观危害等方面探寻监督过失犯罪的原因和根源。第四章至第六章分别研讨了监督过失犯罪构成主观方面、客观方面和主体的内容。第七章监督过失犯罪的余思。主要是监督过失犯罪主体模式设计、注意义务分配及刑罚设置等方面问题的一些想法。更多还原

【Abstract】 With the rapid development of the economy, with an increase in the risk of criminal fault growth by leaps and bounds to become the subject of criminal law theory of attention, supervision and fault problems Gradually being favored. Supervisory negligence of extra-territorial crime research perspective for the study of fault; to not study as a crime perspective or perspectives for the study of corporate criminal liability. Our scholars research this terms on the responsibility of a leader or oversee the fault duty of care to the specific charges.In this paper, there’re seven charpters.the concept of crime from the supervision of the definition of negligence, negligent supervision and introduction to different research path, and supervision over the rationale for the crime of criminal responsibility ,in accordance with, and supervision of the subjective aspects of criminal negligence, negligent supervision of the objective aspect of crime ,the main criminal and several opinions on crime issues.Chapter I Definition of Supervisory Negligence in Criminal Law. Supervision of criminal negligence on the conceptual interpretation of the studies below provide a theoretical premise. Through the semantic analysis of the supervision to the supervision of the fault and fault monitoring features of the concept of crime as defined in the interpretation of the meaning of supervision and criminal negligence.Crime through the supervision of the fault analysis of the type of academic analysis of the supervision of the extension of criminal negligence. Through the supervision of professional negligence and criminal negligence crime, crime and post-fault fault types of dereliction of duty, such as the concept of crime analysis to determine the existence of supervision of the scope of criminal negligence for its location. Supervision of criminal negligence chapter different research path. Supervision of criminal negligence study originated in Japan, then, different theories of criminal law from a different perspective on the issues. Some in the study of the theory of criminal negligence in the supervision formed to further deepen the fault of the theory, such as Japan. Some studies do not as a crime based on negligence on the supervision of research, such as Germany. Some in the legal punishment of crime in the theory and practice of research on this issue, such as the United States, and so on. Through different theoretical perspective and research to broaden the introduction of supervision of criminal negligence, as the domain of research.Supervision of criminal negligence in Chapter III of the theoretical basis of criminal responsibility. I used different research path, select a new perspective, and tap my supervision and the theoretical basis for criminal negligence. The author of the study is different from the fault on the path of Granville, said a sense of fear and not as a crime different from that of the guarantor, but rather based on the modern society itself, from the national point of view of social management, personnel management responsibilities from the responsibility of the job responsibilities theoretical perspective. Modern society to the "risk society" as its core quality, response to the "risk society" realities of the human to control or reduce the risk of harm into the only possible reality is to strengthen the act of human self-control. Modern society, more and more detailed division of labor in society, to complete a task of human beings, their behavior is manifested in a number of members of the "operating system" embodied in the operating system for the layers of supervision and management. When the lowest level of behavior of the perpetrator when the results lead to harm, to the operating system has a duty of supervision and management of staff together with the direct perpetrator of criminal responsibility. Duties of supervision and management personnel have the responsibility of the author’s supervision and fault studies. Then the functions of the responsibility of the perpetrator, the state of society to achieve the functions of management requirements has become a perpetrator of criminal responsibility in accordance with the deep. Other acts of neglected their own duty of care was not fulfilled, the existence of subjective fault; the objective is not to fulfill their duty of care, or improper performance of their duty of care and lead to the emergence of harm results. The perpetrator against the subjective and the objective is a sin to bear direct criminal responsibility in accordance with the corresponding.Chapter IV of the supervision of the subjective aspects of criminal negligence. Supervision of the subjective aspects of criminal negligence is criminal negligence supervision of a most unique elements. Through demonstration, negligent supervision and negligence rather than negligence and fault of over-confidence than the fault of the third category. In essence, Supervisory Negligence is still the fault. Supervisory Negligence can be divided into fault of negligent supervision and negligent supervision of over-confidence. By monitoring the fault of the basic composition, attention to the law of obligations and the possibility of consciousness and awareness of the subjective fault on the supervision of the content analysis, concluded that the acts were the fault of the subjective, mainly in its own supervision and management of its responsibilities arising from the non-performance of duty of care.Chapter V the supervision of the objective aspect of criminal negligence. Supervision of the objective aspect of criminal negligence in the supervision of the main analysis, criminal negligence, and the causal relationship between the results. Fault behavior is itself a relatively new topic of crime in the past the fault of the study results and more to harm the appearance and behavior of people with subjective obligations foreseen to complete the criminal negligence of the judge, cares little for the act, but the fault of modern society an increase in crime, a variety of fault behavior, research on the negligent acts not to endanger further the findings and research to replace the foreseeable obligations, negligence criminal acts can be said that the research is an emerging research field. I will be monitoring the conduct and supervision against the results of the common people into the results of acts, and against the conduct and results include the results of a general sense. Supervision of criminal negligence of the causal relationship between the single and prove itself in the process of complex supervision fault crime is a feature of a causal relationship. Supervision of criminal negligence that is the causal relationship between supervisor behavior and against a causal relationship between the results, but the proof of causal relationship must be being supervised by people against the conduct and the causal relationship between the results to that effect. Or essence, the supervision of criminal negligence is a causal relationship between system, complex causal relationship by the formation of a few.Chapter VI the main criminal. The main criminal of Supervision has always been to determine the scope of the theory and practice of China’s most concerned about the content. To monitor the fault of the author defined the main principles, the starting point for back issues and the limits to such attempts, and criminal negligence on the supervision of the main justifications for the type of school to determine its extension.Chapter VII of the Rethinking Supervisory Negligence in Criminal Law. In the practice of the main puzzles is always an issue, I would like to build a law-based two-tier system of supervision of the main criminal negligence, that is, have the supervision and management duties of national public officials of the main and the main non-state public officials in order to facilitate the administration of justice practice operations. In addition, the supervision must be the fault of the statutory duty of care, and supervision of criminal negligence should also be adjusted accordingly.更多还原