选任过失与接受过失研究

The Study of Selection and Appointment Negligence and Acceptance Negligence

选任过失是指拥有挑选任用从业人员权限的管理者未尽适当挑选任用职责,以致被挑选任用的从业人员因业务能力不足引发危害结果。选任过失是一种管理过失。为避免责任追究的泛滥化,应当结合特殊工种所需要的特定资格证或一般工种所需要的岗前培训等情况限定选任过失的适用。接受过失是指行为人并无承担某一任务的能力但仍然承担该任务,以致在实施过程中因能力不足引发危害结果。不宜将接受过失与原因自由行为进行类比。过失犯的实行行为可以包括认定,这是选任过失与接受过失的认定根据之一。

Selection and appointment negligence occurs when the manager who is authorized to select and appoint practitioners but fails to exercise properly,so that it brings harm due to the professional incapability of practitioners.It is a kind of management negligence.To prevent the abuse of accountability,the investigation of the selection and appointment negligence should be restricted by considering the specific qualification certificate required by some special position or the pre-job training required by some general work.Yet,acceptance negligence occurs when the doer who is incapable to undertake a job but still do it,so that it causes harm due to his incapability in execution.It is improper to parallel acceptance negligence with actio libera in causa.The act of negligence includes the act of determination,which is a difference between selection and appointment negligence and acceptance negligence.