Determination Of "Taking Advantage Of One’s Positi" On In Bribery

With the development of anti-corruption, new crime forms appear continuously.It is really difficult to determine the bribery crime, especially in taking advantage ofone’s position”, which reflects the nature of bribery: exchange of power and money.If offenders do not take advantage of their position to get or accept bribes illegally,they would not commit bribery. Only if accurately grasp the meaning of “takingadvantage of one’s position” in bribery, do we determine whether the offendercommit bribery. Since the year of1979,“taking advantage of one’s position” was putinto the provision of bribery in criminal law, the arguments about it have beencontinued all long. Several opinions among them promote the process of legislation,some are not yet.Through raising questions, analyzing questions and solving question, this paperdiscussed several issues on determination of “taking advantage of one’s position” inbribery. The provision,“taking advantage of one’s position”, was the constitutiverequirements of bribery in the year of1997after many legislative explanations andjudicial explanations. In order to apply to the judicial practice, Supreme Court andSupreme People’s Procuratorate unveil judicial explanations on “taking advantage ofone’s position” in bribery. By generalizing the legislative pattern and research statushome and abroad, the writer analyzed some disputes about “taking advantage ofone’s position” in bribery, including the constitutive requirements, whether to takeadvantage one’s or others’ past or future position, whether to take advantage ofphysical labor in theoretical and practical field, which are the key points indetermining “taking advantage of one’s position” in bribery. Through explainingevery constitutive requirements of “taking advantage of one’s position” andconnecting the theoretical analysis and case study, the writer distinguished the abovedisputes. It comes to the conclusion that “taking advantage of one’s position” is thepremise of bribery. Take advantage of others’ position is the explanation thatreasoned by analogy, which beyond public comprehension and prediction. Becauseboth past position and future profits are not possessed by the offenders, Taking advantage of past position and future profits can not be considered as “takingadvantage of one’s position”.Take advantage of physical labor is excluded, becausephysical labor is one form of labor service, which is not have the administrativecharacteristic. In the practical determination, offenders’ activities seem to be thelabor service. However, it is still administrative. Therefore, it is can not determinethe behavior as crime only by subjective element, but according to the fact thatwhether one’s behavior belongs to official position.In conclusion,“taking advantage of one’s position” in bribery refers to takingadvantage of one’s current position and the scope of duty should be amplified, whichconform to the purpose of criminal law.