Discussion On The Advantage Of His Position In The Criminal Law

China criminal law have dozen charges is expressly provided in the form of take advantage of his position " constitute a crime as the objective elements, and in the field of the crime of bribery and embezzlement reflect the most common. In China's criminal law to take advantage of duty to understand the system is a complex problem, whether in the field of criminal law or in the judicial practice are controversial and have different understanding about it, it is necessary to further explore. In this paper, the combination of the criminal law, " taking advantage of his position " overview, through the definition of " taking advantage of his position " in criminal law, in view of some problems existing in the analysis, Jump out of the traditional research perspective, not rigidly adhere to a crime, Combined with the crime of corruption, bribery and embezzlement of three typical crimes of a thorough and detailed analysis, At the same time, summed up the taking advantage of his position " some of the defects. Based on the above research, it is necessary to make a general discussion on the concept and connotation of the use of the position in the criminal law of our country, draw out the similar objective elements of the crime, make a comprehensive analysis, through the comparison, to clarify their similarities and differences, and then to the criminal law, " taking advantage of his position " of the legislative and judicial aspects to improve. This is the correct distinction between crime and non crime, has a profound and long-term significance of this crime and that crime, helps to apply the law correctly in the judicial practice, so as to ensure the judicial justice, affect the process of criminal legislation, Let every people feel the law of fairness and justice.In this paper, the author combined with the actual situation of our country, the criminal law in the use of the position of the full range, varied angle in-depth analysis, mainly consists of the following four parts:The first part, Mainly to the criminal law "taking advantage of his position" to carry on the summary. Through to the domestic and foreign criminal law "the use of duty convenience" the understanding of the legislative overview, in depth understanding of the meaning and characteristics of "duty" in criminal law, On the basis of defining the concept and characteristics, the "duty" and the adjacent concepts are compared and analyzed, Including "position" and "authority", "position" and "work", "post" and "duty" and "duty". Thus, taking advantage of his position in the criminal law is summarized in a number of perspectives ".The second part, we through the understanding of the meaning, the form of expression and the form of the result of "taking advantage of his position", the full range of the use of his position in the criminal law is interpreted ". In combination with the meaning of "use" and the meaning of "post", the meaning of "taking advantage of his position" is the general situation. At the same time the main analysis of its characteristics: First, the use of the convenience of his position in the form of performance; Second, is to "taking advantage of his position" result form. The first kind mainly includes: use my position and the position of others, abide by the post with post breach of trust using as a form of his position to facilitate and not as a form of his position to facilitate, using the current position and use of the future or the past positions. Second types of results mainly include: direct possession of property, accepting or taking bribes, changing the status of the property, illegal business, decision-making, exercise or hinder the relevant matters.In the third part, Through a thorough comparative analysis of the crime of embezzlement, bribery and embezzlement, the analysis of the characteristics, forms of expression and the judicial determination of "taking advantage of his position" in various crimes. and summarize the common characteristics, and the research in order to better solve some difficulties in judicial practice.The fourth part, To sum up and analyze the problems in the criminal legislation and judicial practice of our country, and put forward the corresponding legislative proposals or measures to improve the judicial practice, in order to perfect the constitution, this to prevent and punish crimes is of great significance, also has to ensure that the cadres honest, clean government, political, in order to protect our country. Steady progress of socialist modernization.