环境监管失职罪归责的规范分析

环境监管失职罪本质上属于过失竞合,归责的核心要素为行为样态、保证人的义务来源与预见可能性。本罪行为样态包括作为、不作为、作为与不作为之结合;本罪保证人的确定既要从法规范上进行形式判别,也应采纳原因支配说理论从法益侵害面进行实质把握;本罪预见可行性是新过失论与畏惧感说相结合。一定条件下信赖原则可适用于环境监管失职罪,存在介入因素、欠缺结果回避可能性与不符合环境监管失职罪构造的场合时,则排除环境监管者的责任。

Environment Supervising and Managing Dereliction of Duty Crime:Behavioral Pattern, Ascription of Responsibility and Exclusion of Responsibility

In order to avoid the unreasonable phenomenon of "hands and feet are guilty" and "the brain is innocent" in the field of the environmental crime.We must take seriously the relevant theory of responsibility attribution of Environment Supervising and Managing Dereliction of Duty Crime. The environment supervising and managing dereliction of duty crime belongs to the concurrence of negligence by nature, and the core elements of imputation are behavior pattern, the source of guarantor''s obligation and the possibility of prediction. Behavioral pattern includes act, omission, and the combination of both. The guarantor''s status should be confirmed not only according to the legal norms, but also according to the legal interest infringement in "Reason governs said". The possibility of prediction is the combination of the new negligence theory and the fear sense theory. Trust principle can be applied to environment supervising and managing dereliction of duty crime under certain circumstances; under circumstances where intervening factors, the lack of the possibility of outcome avoidance and inconformity to the structure of environment supervising and managing dereliction of duty crime exist, environmental supervisors should be exempted from liability.