Research On Taking Advantage Of One's Office

"Taking advantage of one's office" as a means of crime, clearly are ordained in 11 clauses involved 11 crimes in crime code in our country. Accurate understanding and grasp of its meaning, is the preconditions for right applying the law in the judicial practice, is the basis premise of theoretical analysis of such crimes, and is the request of the concept instrument to play its essential role also. "Advantage of one's office as both the connotation and extension of a very broad term, to include legal language in its own existence makes the legal language of the questions being strict." Taking " has the obviously subjective, "Advantage" is a value judgment rather than truth judgment, different people have different criteria. In addition, the ambiguity criminal of law and judicial interpretation and complexity of real life, so there will inevitably have many heated dispute on this questions, and affect the cognizance and right judgment the crime, and affect the unity of justice and the law authority.This paper, on principle of systematic explanation of criminal law, firstly understands the meaning of "taking" "office" "advantage" on the linguistics(because legal language come from the livelihood language, just giving it a specific meaning, the interpretation of the law firstly is literal interpretation, Department of Law is finally the Law of interpretation ), Then, according to the logical relationship among language environment and among legal provisions, analyze the extensive and intensive impact factors of "Taking advantage of one's office", and scientifically interpret what's and why has the different meaning of "Taking advantage of one's office" among related crimes. Finally, define the meaning of "Taking advantage of one's office" of each crime.This article is divided into four parts. Part I is preface, including the Overview of the legislation of "Taking advantage of one's office", the position of position in the special constitutive elements of crime, the existent problem in the understanding now. The part of overview of the legislation of "Taking advantage of one's office" major analyses that even though some of the different provisions have different interpretations, "taking office" "Taking advantage of one's office" "Taking advantage officially" should be on the same understanding in our Criminal Code. The part of position of position in the special constitutive elements of crime major analyses that "Taking advantage of one's office" doesn't belong to one of objective special constitutive elements of crime, but belong to means of elements of objective special constitutive elements of crime. The part of the existent problem in the understanding now major analyses problems and further illustrate that comparative study on the overall is necessary.Part II is the definition of extension of "Taking advantage of one's office", including three parts: the meaning of "Taking", the meaning of "duties", the meaning and content of "advantage". The subjective questions of The "Taking" are researched in the part, and point out that "Taking advantage of one's office" must be a conscious act. The part of the meaning of "Office" major analyze and compare with the concept of system duties associated with office, and establish the relationship diagram of the concept, and provide a scientific foundation to distinguish related concepts. The part of the meaning and content of "Advantage" major analyses the understanding of the "Taking advantage of one's office" should include "Taking authority", "Taking advantage of authority", "Taking duty" and "Taking advantage of the duty". And intensively study that the meanings of "Taking advantage of authority" should, to say the least of it, include "Beyond the authority", " the relationship to subordinate and constraint", "Taking advantage of presentational authority". And also analyses that "perform the duties under the guise of carrying out the duties" and "Taking the impact and the job contact of authority or position, and point out that both of they don't belong to "Taking advantage of authority" or "Taking advantage of the duty".Part III is the connotation factor of "Taking advantage of one's office", including three parts: the criminal, the orientation of office and act functions of service, and the distinction between "Advantage of one's office" and "Non-advantage of one's office". This is the key of defining the meaning of "Taking advantage of one's office" of a crime. We can determine and distinct the meaning of "Taking advantage of one's office" because of this distinction. The key distinction between "Advantage of one's office and "Non-advantage of one's office" lie in whether the "working relationship" between people and their units is formed or not, as well as the sustainability and stability of one's office. Part IV is the definition of "Taking advantage of one's office" of specific crime in the criminal law of our country , including two parts: the detailed definition of "Taking advantage of one's office" of crime of corruption, crime of embezzlement, crime of office misappropriation, crime of misappropriation of funds, crime of acceptance of bribes, and crime of acceptance of bribes of non-civil-servants ,and the simple comparative of the meaning of "Taking advantage of one's office" of related crime.The main innovations of this article lie in: First, systematically compare and research "Taking advantage of one's office" that were expressly stipulated in the Criminal Law in our country. Second, form following new opinions: (1) the opinion of "Taking" has subjectivity; (2)the new opinion of distinguishing "Taking advantage of one's office" and " Taking advantage of the work"; (3) forming the relationship diagram of the concepts: office, work, authority, duties , labor, official duty; (4)The "Taking advantage of one's office" should include "Taking authority", "Taking advantage of authority", "Taking duty" and "Taking advantage of the duty". (5) The meanings of "Taking advantage of authority" should, to say the least of it, include "Beyond the authority", " the relationship to subordinate and constraint", "Taking advantage of presentational authority". (6) The key distinction between "Advantage of one's office and "Non-advantage of one's office" lie in whether the "working relationship" between people and their units is formed or not. Third, from two aspects: the definition of extension of "Taking advantage of one's office" and the connotation factor of "Taking advantage of one's office", try to scientifically defined the meaning of "Taking advantage of one's office" in the Criminal Law in our country.