Judicial Identification Of Causal Relationship Of The Legal Malpractice

The legal malpractice is a major crime provided by the Specific Provisions of the Criminal Law to punish corrupt civil servants, the correct identification of whose causal relationship is of great significance to the solution to criminal liabilities. How to identify the relationship of the causing and the caused between the malpractice and the harmful consequences caused thereby is a major problem in the judicial practice. There are various theories and opinions on the identification of the general causal relationship, compared with the general characteristics of the causal relationship, the causal relationship of the legal malpractice has its own particularities and differences, and in the meantime due to the fact the malpractice is often hidden behind the serious consequences and which is not the direct reasons for the harmful consequences, the discrimination of the causal relationship between the malpractice and the harmful consequences in the complex facts is the nodus for the identification of the legal malpractice in the judicial practice and the correct analysis of the causal relationship of the legal malpractice is the issue which has to be faced and resolved. This paper adopts"the Legal Malpractice Committed by Gong" as the study material, probes into the identification of the causal relationship of the legal malpractice in the judicial practice in combination with theory and practice, and holds that it is the most appropriate to identify the causal relationship of the legal malpractice by the condition theory by clarifying the general theory on the causal relationship of the legal malpractice and analyzing the unique characteristics of the causal relationship of the legal malpractice in combination with case studies. The legal malpractice and the harmful consequences have the causal relationship in the sense of the criminal law as long as the two conform to the formula"no former act, no latter result"and the malpractice has effect on the harmful consequences.This paper is composed of four parts, more than twenty thousand words in total.The first part is the basic introduction to the case. This part introduces the cause of case, the basic case information, briefly states the different opinions on the case and brings out the issues to be discussed in this paper.The second part makes theoretical study on the causal relationship of the legal malpractice. This part puts forward that the issues to be discussed in this paper only contain the judicial identification of the causal relationship of the legal malpractice. By clarifying the general theories on the causal relationship of the crime and briefly assessing various views, this part elaborates that the causal relationship of the legal malpractice refers to the relationship of the causing and the caused between the malpractice and the malpractice consequences in the composition of the legal malpractice. In comparison to the general characteristics of the causal relationship and in combination with actual cases, this part analyzes the unique characteristics of the causal relationship of the legal malpractice, and puts forward that it is the most appropriate to analyze and identify them with the condition theory.The third part is the judicial identification of the causal relationship of the legal malpractice. This part elaborates the basis for the analysis and identification of the causal relationship of the legal malpractice, the first is to determine the harmful consequences meaningful to the investigation of the legal malpractice, then to analyze the relationship between the malpractice and the harmful consequences with the formula of the condition theory"no former act, no latter result"and the legal malpractice and the harmful consequences have the causal relationship in the sense of the criminal law as long as the act and the result conform to the aforementioned formula and the malpractice has effect on the harmful consequences. Only intervening factors at least meet the independent existence and the independent cause of harmful consequences may such factors disrupt the causal relationship between the malpractice and the harmful consequences misconduct. The author categorizes the manifestation of the causal relationship of the legal malpractice in the judicial practice into danger-producing type, turning the danger into the actual harm type and expanding the harmful consequence type and respectively makes detailed analysis and identification in combination with the case studies; and holds that the persons shall also be held criminally responsible for the harmful consequences arising from inappropriate enforcement and stresses that the attention shall be paid to the logic correspondence between the malpractice and the harmful consequences in the judicial practice.The fourth part is the conclusion of the case and its enlightenment. This part sums up the discussed conclusions of the identification of the casual relationship of the case, and puts forward that when the casual relationship of the legal malpractice is identified in the judicial practice, it is a must to seize the soul of "the malpractice committed by the actors has an effect on the harmful consequences and firmly grasps the judgment criterion of"no malpractice, no harmful consequences".