Research On Several Problems For The Cognizance Of Legal Malpractice

Since ancient times,malpractice has been a key regulated object of China criminal law,which is related with the huge loss caused by malpractice and the criminal policy of strict governance.However,today,with the rapid development of science,the risk of public life has become increasingly prominent.Once the public power supervision is lost in the process of production and operation,it is often prone to illegal operations,so as to lead to serious liability accidents.As a result,malfeasance crime will also surface.In 2016,the Supervision Committee initiated the pilot work in Beijing,Shanxi and Zhejiang province,aiming to investigate duty crimes in the round,and malfeasance crime would become the main object of supervision.Therefore,it is necessary to clarify the identification standard of malfeasance crime in order to safeguard judicial justice.At present,the research of China’s criminal law circles on the identification of legal malpractice can’t meet the needs of criminal legislation and judicial practice.There are many difficulties in the identification of the four major factors and their constituent elements.The definition of malfeasance causality is a complicated problem,and the use of the objective imputation theory to interpret the issue is one of the innovations of this article;it is necessary to define the scope of ’responsibility’objectively in the crime,and the duty which is beyond law and human power could not be served as the basis for the recognition of malpractice,because "the law cannot constrain somebody to do things that are beyond his power";the identification of crime circle among the crime subjects involves both legal issues and influences of political factors,for which,there is no ideal solution in the theoretical cycle,and it needs to be broke through in the future legislatively and judicially;In view of the shortcomings in present legislation,it is suggested to add the "malpractice in drug regulation" and set up"small pocket crime".In this paper,the constitutive requirement,identification of elements and other issues are discussed one by one by combining the relevant foreign provisions,trying to build malfeasance identification system.Except for the introduction part,this paper is divided into six chapters:The first chapter discusses the basic theories of legal malpractice,including the concept,essence,characteristics and classification and others.In the academic circles,there are some differences in the concept of legal malpractice.And is the legal malpractice is mainly defined from three aspects,which includes the specificity of the subject,the service nature of behavioral style and seriousness of behavioral outcome.Legal malpractice itself is a kind of category accusation which contains a lot of specific accusations,so this paper defines the concept of legal malpractice from two aspects,namely,the category of accusation and the relations between laws.In addition,legal malpractice often intertwines with embezzlement crime and bribery crime.There has even been the "combination" of form fault and negligence in the subjective constitution of legal malpractice.Moreover,its subjective and objective elements are more complicated,and there is often "Original Crime" problem in some legal malpractices.According to the different constitutive requirements or elements,legal malpractice can be divided into different types.In addition,the problem of;"Review of Compliance" in the identification process of constitutive elements of legal malpractice is also pointed out in this paper to analyze the predicament and put forward solutions.The second chapter discusses the identification of the harmful consequence and causality of legal malpractice,and mainly focuses on the improvement of the identification of harmful consequence and causality.The "Heavy Loss" in the harmful consequence of legal malpractice may contain "Indirect Loss" and "Intangible Loss".The identification of "Indirect Loss" can refer to the experience of judicial practice,and the "Intangible Loss" can be recognized by classification.In the end,the causality recognition of legal malpractice is analyzed by combining the theory of causality recognition in criminal law,and finally the identification method of the objective incrimination theory is finally agreed.The third chapter mainly expounds the subject and identification method of legal malpractice.First of all,by combing the evolution process of the criminal subject of legal malpractice regulated in China’s criminal law standard and different theories about the definition of subject of legal malpractice,the "Identity Theory" is considered more reasonable.What’s more,the subject scope of legal malpractice is delimited and examined by actual cases in this paper.It is pities that some unaccomplished matters still need to be studied in the future.The legal malpractice becomes more complex in the condition of joint crime.The problems whether a no-identity person who involve in the legal malpractice shall be a principal offender,how to convict and what the responsibility of the executor is should be classified and dealt with according to specific circumstances.The fourth chapter is to recognize the subjective elements of legal malpractice.There are many theories about the subjective offense form of legal malpractice in China’s criminal law circles,and the "Compound Fault Theory" is most controversial.This paper advocates denying the "Compound Fault Theory" by "Main Crime Theory,and sorts out the subjective aspect of misfeasance and crime of dereliction.At the same time,it is considered in this paper that "Favoritism" in legal malpractice is the criminal motive but not a factor of crime objective aspect,and the content of favoritism should cover the aspect of acting unfairly from unit’s motives.The fifth chapter discusses about several important and special issues in the identification of legal malpractice.The accountability of legal malpractice often occurs after a major liability accident,but with regard to such crime with implicated relationship,the prosecution of duty crime is often overlooked in the practice of judicial identification.Therefore,this paper considers that the crime constitution of legal malpractice should be strictly abided when recognizing the accusation,and shall neither simply to give up the prosecution by saying that "the technical level is difficult to be reached",nor constrain somebody to do things that are beyond his power.The theory of supervisory negligence can play a certain role in the identification process of supervisory legal malpractice,and can provide reference for the identification of the subjective aspects of legal malpractice.The sixth chapter is about the improvement for the identification of legal malpractice.As saying goes "Mountain stones can offend jade",the study on harmful results,subjects,and subjective aspects of malpractice in foreign countries is to give reference for domestic legislation and the jurisdiction.Secondly,the loopholes in overall identification of "Pocket Crime" in the legal malpractice are discussed,and it is considered that it is difficult to modify the contents of "Pocket Crime".What’s more,it needs to think about the examination of judicial applicability and restraining criminal law when setting up new special legal malpractice.Therefore,the establishment of"Small Pocket Crime" is proposed,which is the crime for administrative omission to supplement and improve the legislative stipulation of current "Pocket Crime".At the end,the criminal content of administrative omission is created and established in this paper.