- 英文摘要
- The concept of supervisory negligence was developed from the
Japanese criminal jurisprudence after the Second World War. Some
commentators have considered the concept of supervisory negligence as a
new theory of negligence while some others have held a very high
expectation of the concept. Through the review of Japanese literature, this
paper examines problems arising from the concept of supervisory
negligence, such as the differentiation between action and inaction, the
content of foreseeable possibility, and the identification of the duty based on
action and the duty based on notice, to understand whether supervisory
negligence is a new theory or simply a factual alternative to the concept of
conventional negligence. After clarifying the position of supervisory
negligence by its nature, this paper further analyzes two representative cases
in Japan, seeking to point out possible reasons why supervisory negligence
have caused so many problems. Possible reasons for causing these problems
include the criminal negligence involving the participation of multiple
parties rather than the participation of only two parties; the competing
priority of multiple negligence arising from one individual’s conduct; as
well as the confusion between the duties under the administrative law and
the duties under the criminal law. In conclusion, this paper first points out
that the supervisory negligence is not a new theory of negligence and it
should follow existing framework of conceptual examination for the offense
of negligence arising from either action or inaction. Secondly, the
conclusion focuses on the background of problems regarding supervisory
negligence, pointing out the existence of problems at a higher level for
supervisory negligence and regulatory negligence, respectively. Finally, it
points out what should be the focuses if the concept of supervisory
negligence is being introduced into Taiwan in the future, as well as the
function of the concept of supervisory negligence in many areas as a
reminder.
- 目次
- 壹、前言
貳、監督過失之概念
一、常見的定義與分類
（一）監督過失
（二）管理過失
二、其他定義與分類
三、小結（本文採取的定義）
參、監督管理過失之定位
一、有關法律問題
（一）不作為與作為義務
（二）因果關係
（三）預見可能性
（四）注意義務與作為義務
二、小結
肆、監督管理過失之問題
一、代表案例分析
（一）監督過失案例之日本アエロジル工廠氯氣外洩事件
（二）管理過失之新日本飯店火災事件
二、問題之成因
（一）多數人參與過失行為
（二）個人過失競合
（三）過失致死傷罪與失火罪
（四）行政法義務與刑法義務
（五）不當擴大國家刑罰權之範圍
三、小結
伍、結論
