Unified Definition And Specific Application Of "Taking Advantage Of One's Position"

"Taking Advantage of one's Position" is a condition for distinguishing between duty crimes and non-job crimes,and provides a standard for distinguishing this crime from the crime in judicial practice.However,our country's legislation stipulates that this constitutional element is relatively simple,and the specific interpretation of its meaning is only for the two crimes of bribery,and there are different interpretations in the two crimes.The lack of accurate basis for the application of the judiciary has resulted in the rigorousness of this component in the application of standards for State staff duty crimes and non-state staff duty crimes,leading to serious consequences such as inaccurate conviction and unfair sentencing.The reason is that the lack of a unified understanding of this constituent element:First,the provisions of the legislation on this constituent element are not clear and unambiguous;secondly,the judicial response to the changes in the social situation is insufficient,and the understanding of this constituent element is not uniform;Third,relevant theoretical research has been confined to sin and has not formed a unified understanding.Therefore,the specific method to solve the above problems is to make a unified understanding of the meaning of this constituent element,and then use the meaning of unified interpretation as the standard to discriminate whether the specific criminal behavior meets the constituent elements.This is not only in line with the requirements of the legislative system,but also the basis for the stable operation of the legal order.The constituent element of "Taking Advantage of one's Position" is a legal concept of uncertainty,and grasping its conceptual connotation is the key to achieving a unified understanding.The subject and behavior of duty crimes are closely related to the term"job",which represents the relationship between the control and the public property or public affairs.This constituent element is only possible if the perpetrator has substantial control over public property or public affairs.The substantive control theory around the substantive control power is a feasible way to achieve a unified understanding of this constituent element.The so-called substantive control power means that the size and scope of the control ability of the actor's management decisions on public property or public affairs are already comprehensive.The actor's control ability is sufficient to exclude other conditions from interfering with his own control power and control.There is no need to rely on other conditions to play.It is based on this kind of control that the actor is able to carry out a duty crime.The establishment of substantive control needs to meet the following three requirements:First,the substantive control needs to be relatively independent;second,the scope of substantive control must be greater than or equal to the scope of control required for job-related crimes;There is a causal relationship between control and crime outcomes.The substantive control theory has universal operability,and can provide a unified standard for the identification of the constituent elements of the "national staff' duty crime and the non-state staff duty crime,and solve many judicial identification problems.First of all,in the identification of the identity of the subject of "Taking Advantage of one's Position",it's possible to effectively identify the complex identity subjects such as entry and retirement,and fully demonstrate the inclusion of forged materials or fraudulently obtained persons and laborers into the actors.Secondly,the difficulty of judicial identification such as"convenience conditions arising from the use of authority" and "greeting"can be understood and judged based on the causal relationship between the actual control of the perpetrator and the crime result.Finally,in the aspect of distinguishing the behaviors of"Taking Advantage of one's Position",it is possible to distinguish the fraudulent behaviors that utilize the convenience of the position and the fraudulent behaviors that are not convenient to use the position,and solve the problem that the behavior of the employee stealing the property of the unit is difficult.Exclude theft from duty crimes.