The accelerated economic and social development has expanded the scope of social risks: frequent accidents in coal mining, safety problems in the field of food and medicine, and production safety accidents in large enterprises.
After this series of actual cases occurred, the distribution and pursuit of the responsibilities of relevant entities became the most important issue. In the past, criminal offenses generally only involved direct criminal subjects, but now, behind such production safety accidents, indirect criminal subjects, that is, managers or supervisors, can almost all be found without exception.
The theory of management and supervisory negligence provides a theoretical basis for determining the criminal duties of the above-mentioned subjects. While the theory of management and supervision negligence has aroused extensive discussion in the mainland academic circles, judicial practice circles have also actively applied the theory of management and supervision negligence in crimes related to dereliction of duty, in order to accurately convict and sentence those responsible for "staying away from the scene of the accident".
However, in judicial trial practice, there is a one-sided understanding of the theory of negligence in management and supervision, and the crimes of dereliction of duty in environmental supervision, dereliction of duty in food supervision, or dereliction of duty are mechanically compared with the law, only emphasizing the form of violation of the law and ignoring the substance is not illegal; in particular, the use of the crime of dereliction of duty as a "pocket crime" has increased the possibility of criminalization of managers and supervisors.
The core of a negligent crime is the perpetrator's violation of the duty of care, and the essence of managing and supervising a negligent crime is the perpetrator's violation of the duty of care in the field of his management and supervision.
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«——[·Case Situation.]——»
Defendant Wang Liangyuan was the deputy head of the patrol and control team of the urban management squadron in Yongxing Town, Xiuying District, Haikou City, and was mainly responsible for the prevention, control and disposal of illegal buildings in the area east of the central line of Haiyu.
In December 2016, Li Zengzeng and Cai Huiming built a simple steel structure warehouse (located within the scope of defendant Wang Liang's inspection) on the extension of Qiuhai Avenue on the east side of the Haiyu Central Line in Xiuying District, Haikou City.
On January 10, 2017, when the defendant Wang Liang led a routine inspection, he discovered the illegal warehouse, and issued a "Notice of Order to Stop Illegal Conduct" and "Notice of Order to Correct within a Time Limit" on the spot, verbally requesting that work be stopped for rectification, but did not take any measures to prevent the continuation of construction, including temporarily seizing construction tools and filling in the system according to regulations to report the illegal construction.
After the defendant Wang Liang returned to the squadron that day, he reported the situation to the instructor He Hele. On January 11 and 13, 2017, Chen Hele led a team to the scene of the case twice, but only looked at the periphery of the factory and left when he saw no construction.
On January 13, 2017, the Yongxing Urban Management Squadron formulated the Action Plan of the Yongxing Town Government of Xiuying District, Haikou City on the Demolition of Two Illegal Buildings. At about 9 p.m. on January 15, 2017, the warehouse involved collapsed while watering the top layer of condensate, resulting in a major accident in which two workers were killed and two workers were injured.
The Xiuying District People's Procuratorate of Hainan Province held that Wang Liang, as a functionary of a state organ, failed to take timely and effective measures to stop the construction of illegal buildings within the scope of his duties, and was responsible for the collapse of the warehouse involved in the case, which led to a major accident, and prosecuted him for the crime of dereliction of duty.
Wang Liang and his defenders disputed some of the facts of the allegations, arguing and defending the following: no construction tools were found during the inspection; Power and water outages are the authority of the squadron leader; The filling of illegal building information should be completed by the squadron leader arranging office personnel;
Moreover, Wang Liang has completed the work within the scope of his duties, but he has only failed to supervise the work defect in time, and there is no necessary causal relationship between his dereliction of duty and the serious consequences of this case. After trial, the Xiuying District People's Court of Hainan Province held that there were two acts in this case, namely, the defendant Wang Liang's improper performance of duties, and the illegal construction by relevant personnel;
There are two outcomes, namely, the result of illegal construction of the warehouse involved and the result of the collapse causing casualties. As a chengguan officer, Wang Liang's improper performance of duties has a legal causal relationship with the illegal building, but there is no legal causal relationship with the casualties caused by the improper construction of the illegal building.
The act of carrying out the act of causing casualties caused by the collapse of a building is the behavior of the construction unit, the construction unit and other responsible subjects. Dereliction of duty is an act of supervisory negligence, and the supervisor is completely consistent with the supervised person in terms of the content of the duty of care.
According to the "Several Regulations of Hainan Province on Investigating and Dealing with Illegal Construction," it can be seen that the purpose of urban management investigating and dealing with illegal buildings is to eliminate illegal buildings and achieve the purpose of strengthening urban and rural planning and management, and the duty of care of construction units and construction units is to report construction and construction in accordance with the requirements of the Urban and Rural Planning Law, and not to build illegal buildings.
Safe construction and preventing collapse accidents belong to the responsibility of the construction unit and the construction unit, and are not the results contained in the purpose of urban management to investigate and deal with illegal buildings, and the results of the accident cannot be attributed to Wang Liang.
For the crime of negligence, Wang Liang did not have the possibility of foreseeing the outcome of the collapse of the illegal building, did not have the responsibility to judge the safety of the illegal building in business, and did not have the ability to judge the safety of the illegal building in his life experience.
To sum up, the first-instance trial acquitted defendant Wang Liang. After the first-instance verdict was pronounced, the procuratorial organ protested: As an urban management personnel, the duty of the defendant Wang Liang is to investigate and deal with illegal buildings, and the purpose is not only to strengthen urban and rural planning and management, but also to safeguard the public interest. Illegal buildings often lack quality assurance, pose serious safety risks, and endanger public safety.
Wang Liang's duty of care includes being aware of the various safety hazards of illegal buildings and having the possibility of foreseeing the harmful consequences that may occur due to the continued construction of illegal buildings. Wang Liang subjectively established the fault of overconfidence, which is responsible; Wang Liang There is a criminal law causal relationship between the incorrect performance of duties and the harmful results.
The implementation of this case was Wang Liang's supervisory negligence in the incorrect performance of his duties, and Wang Liang, as the supervisor, has the obligation to supervise the behavior of the supervised person.9 The act of preventing the supervised person from committing negligent behavior. Wang Liang's negligence in supervision gave the supervised person the opportunity to continue construction on the illegal building, which indirectly led to the occurrence of major safety liability accidents.
The causal relationship in this case is multi-causal, and the negligent behavior of the supervised person and the behavior of the intervening factor supervisor jointly cause harmful results. The defendant in the original trial and his defender expressed their opinion: Although Wang Liang is a chengguan officer, this does not mean that he should foresee all kinds of potential safety hazards that may exist in illegal buildings.
Article 1 of the "Hainan Provincial Regulations on Investigating and Dealing with Illegal Buildings" only protects the public interests of clean and reasonable city appearance produced by "strengthening urban and rural planning and management," and does not include the public interests harmed by the collapse of illegal buildings. Moreover, Wang Liang is an ordinary person with only a high degree of Chinese and no architectural expertise, and it is impossible to foresee that the building involved in the case will collapse;
Although Wang Liang's work is flawed, he has basically performed his duties correctly. The patrol control team of Wang Liang and others has limited manpower and a large area under its jurisdiction, so it takes more time to discover illegal buildings, which is not an act of dereliction of duty.
However, since Wang Liang discovered the illegal building in this case on January 10, the "Notice of Order to Stop the Illegal Acts" and the "Notice of Order to Rectify within a Time Limit" have been served on the scene, and because Wang Liang, Wang Xing and others did not notice the temporary borrowed water and electricity at the scene, they did not take measures to cut off water and electricity.
After returning to the team, Wang Liang completed the filling system according to the regulations, reported to the squadron leaders in time, and accompanied instructor He Hele to the scene again the next day to inspect.
In view of the fact that Wang Liang's position was only the deputy leader of the chengguan squadron, and he was unable to mobilize a lot of manpower and material resources to carry out the forced demolition, Wang Liang had exhausted the measures he should take within the scope of his duties after discovering the illegal building; Wang Liang's actions have no causal relationship with the consequences of the collapse of illegal buildings causing casualties.
The main reason for the death of the two people in the safety accident was that Lin Wenli and others ignored the law and continued to carry out work after knowing that they had been issued by the urban management squadron with a "Notice of Order to Stop Illegal Acts" and a "Notice of Order to Rectify within a Time Limit."
After January 13, the illegal building involved in the case dared to defy the wind, and an important reason for continuing construction was that Lin Wenli repeatedly contacted squadron instructor He Hele, team member Guan Yejing and others on illegal construction matters before the case, and ate together and traded power for money, resulting in failure to enforce the law impartially and allowing the situation to deteriorate.
Wang Liang's personal dereliction of duty is not necessarily causal to the occurrence of the accident. The Haikou Intermediate People's Court of Hainan Province held that Wang Liang had a subjective desire to actively pursue the handling of illegal buildings involved in the case in the process of performing his duties, and there were no subjective factors of slack and inaction;
The illegal construction of the illegal building involved in this case caused a major accident, but the consequence can only be a necessary causal relationship with the illegal building owner or construction, and the correlation with Wang Liang's behavior is very small.
After Wang Liang discovered the illegal building involved in the case, he immediately issued a "Notice of Order to Stop Illegal Acts" and a "Notice of Correction within a Time Limit," and reported it to the leader He Hele on the same day, and He Hele was already aware of the facts of the case.
The next day, He Hele led a team to the scene to investigate, and Wang Liang also participated in it, and the above process should be regarded as why Hele had taken over and participated in the handling of the work, Wang Liang had completed the handover of duties, and the unforeseeable consequences that might be caused by improper performance of duties could no longer be attributed to Wang Liang.
In summary, the Haikou City Intermediate People's Court in Hainan Province ruled to dismiss the protest and upheld the original verdict, saying that Wang Liang did not constitute the crime of dereliction of duty.
Criminal Law of the People's Republic of China, Article 397 [Crime of Abuse of Power] Where a functionary of a state organ abuses his power or neglects his duty, causing major losses to public property, the state, and the interests of the people, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; where the circumstances are particularly serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. Where this Law provides otherwise, follow the provisions. Where a functionary of a state organ engages in irregularities for personal gain and commits the crime mentioned in the preceding paragraph, he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; where the circumstances are particularly serious, they shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years. Where this Law provides otherwise, follow the provisions.
«——[·Interpretation of the Law by Case.]——»
Whether Wang Liang has a duty of care
The premise for judging whether Wang Liang has a duty of care is to determine the content of Wang Liang's duty of care in this case. To understand the content of Wang Liang's duty of care, we should first clarify the source of Wang Liang's duty of care in this case.
The source of the duty of care, that is, the basis for the duty of care, mostly refers to laws and regulations, industry rules, customs, and common sense. Wang Liang's identity is the deputy leader of the patrol control team of the urban management squadron in Yongxing Town, and as a chengguan officer, his daily work is responsible for investigating and dealing with illegal buildings in the area east of the Haiyu Central Line.
The "Several Regulations of Hainan Province on Investigating and Dealing with Illegal Construction" is the code of conduct for judging Wang Liang's work, and the prosecution and defense unanimously determined that this is an important source of Wang Liang's duty of care. Article 1 of the regulations clearly states: "Strengthen urban and rural planning and management, investigate and deal with illegal construction, and safeguard social public interests." ”
It can be seen from this that Wang Liang's investigation and punishment of illegal buildings is aimed at safeguarding the public interest. If Wang Liang's performance of his duties has caused harm to the public interest, it means that he has violated the requirements of the "Several Regulations of Hainan Province on Investigating and Handling Illegal Construction," that is, he violated the duty of care in this case. The prosecution and defense disagreed on the connotation of "social public interest".
The procuratorate believes that social public interests include not only maintaining the order and beauty of urban construction, but also protecting the public interests harmed by the collapse of illegal buildings;
Defense lawyers believe that social public interest only refers to maintaining the order and beauty of urban construction. Therefore, the two sides were at odds on whether Wang Liang's duty of care included clearly knowing the various safety hazards of illegal construction.
The court held that the work of chengguan does not require professional knowledge in construction, ensuring construction safety, and preventing collapse accidents is the duty of care of the construction unit and the construction unit, and is not included in the duty of care of the chengguan duty. Wang Liang did not have the duty of care required to constitute the crime of dereliction of duty in this case.
To sum up, on the issue of whether the duty of care has been violated, in addition to formally judging the actor's performance of legal norms in the relevant field, it is more necessary to test whether the act has caused substantial danger, that is, whether the act violates the legal interests that a certain legal norm intends to protect, and ultimately causes infringement of legal interests in criminal law, and thus bears criminal responsibility.
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