Three Stages Of Judicial Judgment Paradigm Of "Taking Advantage Of One's Position" In The Criminal Law Of China

In the criminal law to "take advantage of duty" for the elements of the crime types.For the elements of how to understand and judge the problem in theory there are a lot of research,but most of the research is on a specific type of crime of "taking advantage of post" judgment,but rarely from the macroscopic angle of the elements to make a general judgment.So the author from the angle of the macroscopic analysis of "taking advantage of post" elements,hope in the theory and practice of"taking advantage of post" elements have a macro understanding.The basic structure of this paper is the first part is the introduction of"prerequisite for taking advantage of post",the author thinks that the form has the identity and essence of the post on two conditions.That is to say when the behavior of people in does not have the appropriate identity and substantive duties,it is impossible to be "by post".The author believes that the possibility of progressive relations are between the two conditions,based on the first condition under the following conditions,there is no possibility.According to this logic of "taking advantage of post" to judge the objective existence of the two conditions.The second part is to "take advantage of duty" involved in the object based on the related preconditions are analyzed.The author thinks that because the object is different,the main behavior of "taking advantage of the judgment will be different,in a clear judgment in the case of the objects involved,clear behavior further" post",so as to further judge the behavior of' taking advantage of post "causal relationship.According to the characteristics of crime and characteristics of' taking advantage of post "with" taking advantage of post "type of corruption crime is divided into types the type of crime,bribery crime and other types of crime,on the basis of the related analysis to determine the specific types of crime.The author thinks that the basic"take advantage of duty "the judgment should be three Phase judgment.The third part is used to show the way of "judgment mode of taking advantage of duty" elements,clearly demonstrate the conclusion of this article "taking advantage of post" three stages of judicial judgment mode,the first stage:the precondition of judging;judge the objects involved;judging causality.The author thinks that the first the stage is the most basic judgment,identity and job behavior;to determine the second stages of judging the objects involved,the author thinks that this phase of the judgment is that the objects involved in the specific case judgment is public affairs or public property,there are specific forms of public affairs or public property,such as the number of judgment;the third stage is to determine the causal relationship between the use of post".The author thinks that the three stage of judicial judgment paradigm accords with the thinking of ordinary people,with the judicial practice.The fourth part starts from the basic paradigm of a crime in this paper.According to the verification of the general method of crime from a summary,finally come to the judicial judgment paradigm,but this is in turn,starting from the basic paradigm,eventually fell to a crime.For this the path,the basic idea is that:13 the author of the first stage of the judicial judgment paradigm is not derived from a crime,but from a macro perspective on that basis of criminal law text and related official explanation on the basic judicial judgment paradigm,with the macro theory.In order to prove the practical judicial judgment paradigm,the author in the this part of the introduction of a crime to specific application of this paradigm,the feasibility of the conclusions in this paper.The last part is the conclusion.In the conclusion part,the author summarizes the argument of this paper,and mentions the new confusion and some immature ideas.To solve this problem basically is proposed to design problems,relevant cases,write the conclusion,to solve the problem of path thinking.The conclusion of the article's argument is deductive reasoning basis for criminal law text and relevant judicial interpretation on.