【摘要】 监督过失肇始之初是为了解决公害犯罪中处于“领导地位”的监督管理者的责任问题，渐次拓展到追究公务人员的监管过失责任，其实质是越过了作为“中间项”的第三人犯罪而追究处于“上位”的监督者的刑事责任，但是存在诸多传统刑法理论难以解决的归责难题。监督过失行为的实质是过失不作为，导致公共安全风险大幅升高。监督缺位创设了法所不容许的风险并导致损害结果发生，如果行为人具有预见可能性，则具有了可归责性。在司法适用中，应当以保证人为中心对创设法不容许风险予以展开分析，并限制监督过失责任的成立范围。更多还原

【Abstract】 The core problem of criminal law is the possibility of the imputation of legal responsibility.Under normal conditions, the actor is only criminally liable for his own act, but in negligent supervision liability, the supervisor is liable for the damage resulting from the negligent acts of others. Negligent supervision, in the beginning, was a theory to resolve the responsibility of a supervisor who had “leadership” in the offense of public hazards, but it gradually expands to the civil servants’ supervision negligence responsibility. In fact, it is across other person’s crime as a “middle item”. Therefore, negligent supervision liability has lots of imputation problems that are difficult to resolve by traditional criminal theory.In effect supervision negligence is a negligent omission, which increases the public safety risk.In supervision negligence offence, creating risks and causing such risks prohibited by laws is the composition of supervise negligent behavior. But if the actor did not cause the risks prohibited by law, the possibility of the imputation of legal responsibility will never exist in the first place. It is neither the inactive attitude to supervising responsibility nor the inactive omission of duty that causes those risks and consequent damage but that the absence of supervision does. On this premise, if the actor also has the possibility of foreseeing, then the supervisor has criminal responsibility for supervision negligence offence. In judicial practices, it is necessary to carry out the interpretation of the risks not allowed by the law where the guarantor is at its center, and the range of the supervision negligence responsibility is restricted. The scope of the supervision negligence responsibility does not rely on the causal link according to the facts nor objective imputation, nor depend on whether the supervisor has the possibility of foreseeing. It hinges on the active acts as responsibility and on the risks significant to the law caused by the supervision negligence.The supervisor for the damage caused by his negligence should be prosecuted. Moreover, a preventive legal system should be established, which could combine the punishment with the prevention for better preventing the occurrence of public safety risks. While judging whether the supervisor is liable to the damage, we should focus on the necessity of preventing public safety risks.Objective imputation in this way could be in accordance with the social public’s feelings of justice and common-sense. It helps to form a unified awareness of illegality, and to better prevent public safety risks.更多还原