On The "utilization Of The Convenience Of The Position" In The Crime Of Occupation Of Occupation

In Chinese criminal law, "by taking advantage of his" appear in multiple elements of the crime, a typical crime of embezzlement,bribery,job occupation crime,embezzlement, etc. But our country criminal law is not of a clear definition of "by taking advantage of his", in the understanding of job occupation crime "by taking advantage of his office," the understanding of the current academic circles is too vague,it is necessary to explore its essence meaning and specific criteria,such ability standard shall be applicable to the specific judicial practice, to reduce the verdict unfair phenomenon."In the understanding of job occupation crime by taking advantage of his" when most people refer to the academic circles and judicial practice of the supreme people's procuratorate on the investigation of cases directly accepted by the people's procuratorate filed a case the provisions of the standard (try out) "and the supreme people's court issued by the national court work symposium protocols of economic crime cases, defined the requirement to use his head, the power of the management,handling public property and convenient conditions, but in" by taking advantage of his "on the understanding of corruption emphasized a kind of nature of the functions and powers, the convenient use his bribery emphasizes is a kind of position and wealth of behavior. While using job occupation crime in the position to pay more attention to behavior person based on the business relationship and direct possession of property of the state."In the understanding of job occupation crime by taking advantage of his", the theoretical circle is produced for the single legal interests or double differences of interests. In understanding "by taking advantage of his", should be based on "single law said," of job occupation crime law should be a unit of property rights, but not including public power unit or management system. In the measure of job occupation crime to protect legal interests, must fully consider the property management system,with the so-called company unit the status relationship between public power.Property rights and the company management system, unit of public power is a kind of means and purpose of relationship between. There is not the same status level, not as the crime method.To define from the relationship of possession of job occupation crime by taking advantage of his "is a new way. Job occupation crime and legislation evolution relationship closer, embezzlement of job occupation crime should be classified as embezzlement spectrum is more appropriate, in terms of criminal behavior, the means of job occupation crime should only include the means of misappropriation, not including post steals, swindles or other means. This "by taking advantage of his"concrete determination laid the theoretical foundation, "by taking advantage of his"should be understood as: (1) between person and unit property ownership is the premise of using position; (2) the behavior person independent direct c(?)ol,dominant property is the key; (3) using behavior person infringed property and his position has a causal connection is essential.