Legal provision:

Article 134(1) of the Criminal Law: Where any person violates the rules and regulations on safety management during production or operation, thereby causing a major accident involving serious injuries or deaths or causing other serious consequences, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are especially flagrant, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.

Production safety is directly related to personal life and property safety as well as public peace and order. Conversely, violations of production safety management regulations may constitute illegality at the minimum or crime at the maximum. As a terminal charge in Chapter 2 of the Criminal Law, the crime of major liability accident has a certain catch-all nature in terms of its constitutive elements. Accurately defining the scope of liability for this crime requires preventing the broadening of criminalization conditions and the casualization of identification standards, neither handling cases mechanically nor rigidly applying the law. This article interprets and analyzes the crime of major liability accident from a judicial practice perspective.

I. The Act of the Crime of Major Liability Accident

As the core content of the constitutive elements, the mode of conduct may include both positive acts and negative omissions. The act of the crime of major liability accident occurs during the process of production or operation and involves active production or operation, while the violation of safety management regulations constitutes a negative omission—the failure to engage in production or operation activities in accordance with the conditions and procedures stipulated by safety management regulations, representing a breach of the duty of care, management duty, or supervisory duty under safety management regulations. Here, conceptualized or vague identification of the act of the crime of major liability accident must be prevented, specifically addressed from the following aspects:

First, the actor. The actor of the crime of major liability accident is a special subject, i.e., persons engaged in production or operation. A unit cannot be the subject of this crime. According to the “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in the Trial of Criminal Cases Involving Endangering Production Safety” effective December 16, 2015, the actors of this crime include persons responsible for organizing, directing, or managing production or operation, such as persons in charge, management personnel, actual controllers, and investors, as well as persons directly engaged in production or operation. The “Interpretation (II) of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in the Trial of Criminal Cases Involving Endangering Production Safety” effective December 19, 2022, also contains the same provisions, covering both persons directly engaged in production or operation and persons organizing, managing, or supervising production or operation.

Second, the act violates relevant safety management regulations. Safety management regulations are the legal evaluation standard for the act of the crime of major liability accident. How to determine the content of safety management regulations is often a critical point for determining guilt or innocence. Two aspects require attention: first, normative documents such as laws, regulations, and rules concerning production safety and operation promulgated by the state; second, systems related to production safety and operation established by enterprises, institutions, and higher-level management authorities. In practice, these safety management regulations must be objectively verifiable facts that can be proven through documentary evidence. The duties of care imposed by laws and regulations on enterprise managers must be specific and clear. The safety management regulations violated by enterprise managers should be specific rules and norms for ensuring production safety, rather than general, declaratory cautionary provisions. At the same time, the safety management regulations themselves must be public and operable, capable of ensuring safe production and operation.

Third, the act violating safety management regulations occurs during the production or operation process. Production or operation includes both direct production and operation activities and preparatory and intermediate rest work related to direct production and operation. The production or operation process is not limited to specific production or operation times and locations. For example, if a major liability accident occurs due to violation of safety management regulations during a production suspension for rectification or a break, the crime may still be established.

Fourth, the content of the duty under safety management regulations and the duty bearer. From the case-handling perspective, identifying the actor and responsible person after an incident is a backward-looking investigation process. The attribution and imputation based on violation of safety management duties must conform to objective evidentiary standards and the possibility of avoidance in reality. The duties violated by different subjects are not entirely the same. Persons directly engaged in production or operation violate the execution norms of safe production and operation, while persons organizing, managing, or supervising violate safety management and supervision duties. This requires that the content of safety management regulations be clear and operable, that the actor be clearly aware of and obligated to comply with them, and that both frontline production/operation workers and organizational/management/supervisory personnel be clearly identifiable, specific responsible individuals (there are usually multiple responsible subjects). The prosecuting authority has the obligation to prove these facts; otherwise, the corresponding charges may result in acquittal.

Fifth, positive identification and negative exclusion of causation. In the causation of the crime of major liability accident, the situation of multiple causes leading to one result requires attention. When positively distinguishing direct and indirect causes objectively, the primary and secondary causes should be distinguished based on the magnitude of causal force. Negatively, the identification and exclusion of intervening causes such as accidents and intentional acts by third parties should be conducted. This prevents the abuse of the catch-all charge, ensures strict review and identification of statutory criminalization conditions, eliminates the judicial deviation of “scapegoating,” and achieves proportionality of crime and punishment.

II. Consequence of the Crime of Major Liability Accident

The crime of major liability accident is a consequential offense, requiring that the violation of safety management regulations during production or operation cause a major accident involving serious injuries or deaths or other serious consequences. The general statutory penalty is fixed-term imprisonment of not more than three years or criminal detention. If the circumstances are especially flagrant, the punishment is enhanced to fixed-term imprisonment of not less than three years but not more than seven years. According to the “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in the Trial of Criminal Cases Involving Endangering Production Safety” effective December 16, 2015, the standards for determining “major accidents with serious injuries or deaths or other serious consequences” are:

(1) Causing death of one or more persons, or serious injury of three or more persons; (2) Causing direct economic losses of RMB 1 million or more; (3) Other circumstances causing serious consequences or major safety accidents.

The standards for determining “especially flagrant circumstances” are:

(1) Causing death of three or more persons or serious injury of ten or more persons, bearing primary responsibility for the accident; (2) Causing direct economic losses of RMB 5 million or more, bearing primary responsibility for the accident; (3) Other circumstances causing especially serious consequences, especially flagrant circumstances, or especially serious consequences.

At the same time, standards for heavier punishment are provided:

(1) Engaging in production or operation activities without obtaining safety permits, or after safety permits have expired, been temporarily withheld, revoked, or cancelled; (2) Shutting down or destroying necessary safety monitoring and alarm equipment; (3) Failing to take measures after discovering accident hazards despite being notified by relevant departments or individuals; (4) Having received administrative penalties or criminal punishments for illegal or criminal activities endangering production safety within the past year; (5) Using fraudulent means, bribery, or other methods to intentionally evade or obstruct supervision and inspection by departments with safety supervision and management responsibilities; (6) Transferring property after a safety accident to evade responsibility; (7) Other circumstances warranting heavier punishment.

It should be noted that the two indicators of casualties and direct economic losses can be objectively verified with specific amounts. However, the catch-all circumstances for different sentencing ranges, such as “other serious consequences” and “especially flagrant circumstances,” have unclear identification standards, are subject to subjective determination, and are easily affected by various extra-case factors after the incident, requiring case-by-case analysis and assessment.

III. Negligence Liability for the Crime of Major Liability Accident

In major liability accidents, the subjective elements of the crime include examination of both the cognitive and volitional elements regarding the act itself and the consequences. The actor may be intentional or negligent regarding the fact of violating safety management regulations during production or operation, but must be negligent regarding the serious consequences caused by the violation of safety management regulations during production or operation, otherwise the actor may be convicted of other intentional crimes. In practice, the actor does not desire the serious consequences; the incident is “contrary to their wishes” and inconsistent with their subjective will or purpose.

As a consequential offense based on negligence, determining whether enterprise managers have the duty and ability to “foresee” major liability accidents is key to determining whether they have supervisory negligence and thus whether criminal liability should be imposed. Based on this, further analysis based on different subjects is needed regarding the subjective determination of negligence, particularly analyzing the duty of foreseeability and ability to foresee from the perspectives of identity and authority:

First, frontline personnel directly engaged in production or operation. In practice, frontline personnel directly engaged in production or operation are often not managers or persons with significant authority. They merely follow their technical specifications or job duties and comply with safe production and operation requirements. Although they may not be the primary responsible persons for major liability accidents, they are directly responsible persons. They have the duty and ability to foresee that production or operation activities conducted in violation of safety management regulations may lead to serious accidents. There is usually no disagreement or deviation, but their controlling role is smaller and their responsibility is typically lighter.

Second, personnel organizing, managing, or supervising production or operation. Organizers, managers, and supervisors who do not directly engage in frontline production or operation have the duty to engage in safe production and operation according to regulatory requirements and have the ability to conduct production and operation safely and normatively and avoid major liability accidents. Attention should be paid to the actual management and supervisory authority enjoyed by the actor, such as dormant shareholders or dormant controllers. The standard for determining the subject of management and supervisory negligence is to look at the actual attribution of authority. The judicial interpretation effective December 16, 2015 provides that the criminal subjects of the crime of major liability accident include actual controllers and investors, fully reflecting the adoption of a substantive judgment method regarding the status of supervisors and managers. Regarding the determination of whether the actor has the ability to foresee, focus should be on whether the actor has a dominant management relationship with subordinates, i.e., actual binding force and controlling power over supervisory management conduct. The supervised should comply with the supervisor’s education, guidance, orders, inspection, correction, and other legitimate arrangements, thereby engaging in production or operation activities that conform to safety management requirements.

Third, the duty of foreseeability and ability to foresee should be differentiated among different subjects. Within the business entity engaged in production or operation, there are differences in the identity and authority of personnel organizing, managing, or supervising production or operation. The negligence liability of each should be analyzed based on the level of enterprise management personnel. The higher the position, the greater the authority, the heavier the responsibility. Below the actual controller, according to different levels and authority sizes, the job duties of managers and supervisors can be determined based on “criminal compliance,” effectively utilized in judicial cases to more accurately determine the actor’s duty and ability to foresee, achieving separation of public and private responsibilities and segregation of levels, ensuring the reasonableness and balance of criminalization and the legitimacy and fairness of decriminalization, effectively and equally protecting the lawful rights and interests of private enterprises and their operators.

IV. Acquittal Cases for the Crime of Major Liability Accident

Acquittal Case 1 [(2018) Ji 02 Xing Zhong No. 640]:

In an employment relationship, if the employee engages in labor under the employer’s arrangement and does not act recklessly by disregarding instructions, the crime of major liability accident is not established.

Judgment Opinion: The objective aspect of the crime of major liability accident is mainly manifested as violating safety management regulations during production or operation, thereby causing a major accident with serious injuries or deaths or other serious consequences. The actor must have committed an act violating relevant safety management regulations, mainly manifested as disobeying management, disregarding instructions, not observing operating procedures, and acting recklessly. In this case, Zhang’s in-court confession and testimony from witnesses Fan, Ma, Wu, Wei, Liao, and others confirmed that Xu contracted individual building demolition work without any qualifications and organized workers in violation of building demolition safety technical regulations. Therefore, the appellate reasons and defense opinions of the original defendant Zhang and his defender regarding the existence of an employment relationship between Xu and himself were supported.

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Acquittal Case 2 [(2016) Ji 01 Xing Zhong No. 164]:

The criminal subject of the crime of major liability accident should have safety management duties. Whether a particular employee has safety management duties should be determined based on comprehensive case evidence.

Judgment Opinion: The “Construction Project Construction Contract” signed on June 23, 2014, between Party A Jilin Xingchen Logistics Co., Ltd. and Party B Jilin Jihai Construction Engineering Co., Ltd. stated that Gao was the engineer dispatched by Party A to the construction site but did not stipulate that he had safety management duties. Testimony from Meng, the actual controller of the construction unit Jilin Xingchen Logistics Co., Ltd., and Liu, the representative of the construction unit, confirmed that Gao had safety management duties, but this testimony was not corroborated by other evidence. The construction squad leader Huang and project manager Li both confirmed that Gao was mainly responsible for engineering technical work. In summary, existing evidence could not establish that Gao had safety management duties in this project. Gao should not bear responsibility for the safety accident occurring during the project construction, and his conduct did not constitute a crime. Therefore, the appellate reasons of Gao and the defense opinions of his defender were adopted.

Acquittal Case 3 [(2016) Liao 07 Xing Zai No. 4]:

If the major accident did not occur during the production or operation process, or has no direct connection with production or operation, the relevant responsible conduct does not meet the objective elements of the crime.

Judgment Opinion: “Production” and “operation” in the context of the crime of major liability accident have unique limitations and characteristics. In the criminal law sense, “production” and “operation” are based on the division of labor in society, must be repetitive, continuous, and involve certain dangers. The production and operation process only includes the substantive operational phase, while the preparation phase, rest or break periods, or pauses in production or operation do not constitute the production or operation process. In this case, based on the enterprise archive information registered with the administrative department for industry and commerce, Renfa Farm’s business scope was “fox and raccoon dog breeding” and its industry was “livestock raising.” Building stoves and installing electric rotisseries was only for preparing food for raising foxes and raccoon dogs. Although the work of building stoves and installing electric rotisseries by Yang and the victim Shen was related to fox and raccoon dog breeding, it was fundamentally different from the continuous and repetitive nature of fox and raccoon dog breeding operations and did not constitute production operations in the substantive operational phase of fox and raccoon dog breeding. Additionally, the spatial and temporal limitations of “production” and “operation” must be accurately understood. If the actor was not engaged in production or operation, or production or operation was in a stopped state, and the actor’s conduct during rest time caused serious consequences, the crime of major liability accident cannot be established. In this case, Yang stated in the investigative agency’s interrogation record, “The last work we two did was building the chimney…” Qi also repeatedly stated, “He had finished all the work he should do.” The existing evidence was insufficient to prove that the victim Shen’s normal work had not ended, nor was it sufficient to prove that Shen’s work included the trial operation of the electric rotisserie. Therefore, it could not be determined that the relevant conduct causing Shen’s death constituted an operational act under this crime.

Acquittal Case 4 [Xiang Jian Su Xing Bu Su [2020] No. 207]: If the actor observed rules, regulations, and operating procedures during production or operation and did not violate safety management regulations, the objective elements of the crime are not met.

Judgment Opinion: A certain sewage treatment plant contracted maintenance work to Suzhou Environmental Protection Equipment Co., Ltd. The relevant responsible persons of Suzhou Environmental Protection Equipment Co., Ltd. should bear safety management responsibility for the maintenance work. Suzhou Environmental Protection Equipment Co., Ltd. failed to provide confined space operation training to employees Chen and Shan, failed to develop an operation plan, failed to provide labor protection articles meeting national or industry standards, and failed to educate and supervise workers to properly wear and use such articles, resulting in Chen, Shan, and others not understanding the principle of “ventilate first, then test, then operate” and entering confined spaces directly without wearing labor protection articles, ultimately causing the accident. Cai was a mechanic at the sewage treatment plant. The contact for maintenance matters was approved by plant manager Wu. The sewage treatment plant had a dedicated safety officer who participated in confined space operation training organized by higher authorities but subsequently failed to provide confined space operation training to Cai and other employees. Therefore, Cai, as maintenance personnel of the contracting party, was not a safety officer, did not understand the nature and requirements of confined space operations, and did not violate safety management regulations. Cai did not constitute a crime. In accordance with Article 177(1) of the Criminal Procedure Law of the People’s Republic of China, it was decided not to prosecute Cai.

Acquittal Case 5 [Ka Jian Yi Bu Xing Bu Su [2020] Z20]:

If the actor could not possibly foresee the risk or there is evidence that the actor has fulfilled reasonable duty of care, subjective negligence is not established.

Judgment Opinion: Although the person not prosecuted, Shan, served as a safety officer responsible for production safety, the company had received a government notice to suspend production and was preparing to cease operations. During the incident, Shan was unaware that Du had led workers into a production site that had not been confirmed as safe—a matter that Shan could not have foreseen. Therefore, Shan did not constitute the crime of major liability accident. In accordance with Article 16(1) and Article 177(1) of the Criminal Procedure Law of the People’s Republic of China, it was decided not to prosecute Shan.

Acquittal Case 6 [(2018) Liao 02 Xing Zhong No. 77]:

If there is no causal relationship between the actor’s negligent conduct and the harmful result, or the causal relationship is questionable, the objective elements of the crime are not met.

Judgment Opinion: According to the “Provisions on Fire Accident Investigation,” public security fire authorities shall prepare fire accident determination certificates. For fires of relatively large scale or above, public security fire authorities shall conduct fire technical investigations, and the investigation report shall include analysis of the cause of the fire and disaster causation. Regarding the cause of the fire in this case, the fire authority determined suspected arson, while the public security authority ruled out intentional arson and determined the specific cause of the fire could not be ascertained. The fire authority also did not determine the disaster causation in this case. Based on the full case evidence, reasonable doubt could not be excluded. Therefore, the protest opinion of the protest authority that the original defendant Zhang constituted the crime of major liability accident was not supported by this court.

Attorney Profile

He Zhiwei, Attorney

Attorney He Zhiwei holds an LL.M. from Northwest University of Politics and Law and is currently an attorney at Beijing Long An Law Firm.

Attorney He’s main practice areas include criminal legal services, specifically including financial crimes, death penalty review, criminal-civil交叉 legal disputes, duty-related crimes, crimes against social management order, and criminal compliance. Since practicing, he has consistently worked in criminal defense and criminal compliance legal services, handling a large number of corporate litigation and arbitration, criminal defense, and compliance cases. He focuses on the practical construction of mature theories and the professional refinement of effective experience, emphasizing the combination of substance and procedure, the convergence of law and policy, the balance of system and detail, and the交叉 of criminal-administrative and criminal-civil matters. He concentrates on persuading judicial and regulatory authorities from a professional perspective, pursuing quality and efficiency in legal services and maximizing client interests.

He was awarded Business New Knowledge’s “Top Ten Legal Creators” for 2022, and in March 2023, published the book “Illustrated Standards for Case Filing, Evidence, Conviction, Sentencing, and Legal Application: Cases Disrupting the Socialist Market Economic Order.”