The Research Of Using Functionary Power

Montesquieu in the book called the spirit of law, said:"whoever powerful are prone to abuse of authority, it is not only the experience, who are entitled to make maximum use of the hand rights, from its essence perspective, to prevent such abuse of authority, it must be right bundle in" the right. According to our country criminal law theory and the judicial practice, is one of the necessary element of the crime. Crime itself is the behavior, "no behaviors are no criminal punishment and also have no." According to the provisions of the criminal law, will act "use the convenience of position" as performance of the provision of a dozen. For these correct understanding and scientific determination, will the sin of related to such crimes with the sin, this sin and the definition of sin relationship, and furthermore influence the criminal legislation and judicial. Therefore, to "use the convenience of position" this objective elements of research is profound.The author combined with previous theory viewpoint and the judicial practice need to "use the convenience of position" for research, provide helpful for theory and practice. According to that academic field research present situation, our country legislation and provisions of involving the elements of crimes, intends to discuss from the following aspects:First, the "use the convenience of position" in the current criminal law overview. Systematically summarized the current criminal law in order to "use the convenience of position" as a crime objective expressly, including article 163 of the criminal law, article 166, article 183, article 185, article 271, article 272 bars, the third, article 384, third. Based on this, a detailed lists specific provision, will this dozen crime same elements namely "use the convenience of position", and article 165, article 166 regulations "with their position" elements, find out the comprehensive analysis.Secondly, "use the convenience of position" basic theories. In this paper the current about "use the convenience of position" in the "post" on the basis of the concept of explicit "duties" have three basic characteristics:the authenticity, practicality and directly. Because in the judicial practice often appear "use the convenience of position" and "job convenience", "identity convenience" recognition of the difficulties, so it is necessary to "post" and "service", "official" adjacent concept comparison, so as to better solve the "the convenience of position" and "identity convenience", "job convenience" in practice is difficult to define the problem. In addition, according to the provisions of the criminal law, will "use the convenience of position the meaning from the Angle of related crime classification to understand. Based on the nature of the crime and "use the convenience of position" specific characteristics of differences, try to they are divided into two types, namely the type of embezzlement and bribery crime and other types of crime. The former belongs to the category of duty crime, The latter including illegal business similar business sin, for friends and relatives profit illegally sin. Based on the constitutive requirements under two kinds of crime in the meanings of understanding, emphatically analyses the "use the convenience of position" in embezzlement and bribery crimes, the behavior way of illegal business operations in addition, with similar business sin, for example, to other types of crime "with their position" legal analytical.Finally, embezzlement and bribery in the "use the convenience of position" of a sin interpretation. Combination of "above, use the convenience of position" understanding of basic concepts, and analyzed the judicial practice in the typical cases of embezzlement, the element of the content and the existing problems were expounded, and summarizes some of the difficulties of bribes cognizance and reason, and then proposes consummating use the convenience of position "this element of the countermeasures and principle, thus safeguarding" use the convenience of position", from the perspective of criminal legislation, judicial perfect.