Research On The Judicial Application Of "Utilizing The Convenience Of Position" In The Bribery Crime

In the bribery crime,the interpretation and identification of the elements of"utilizing the convenience of position" has been debated continuously in theory and practice.From the controversy over the preservation and abolition of the elements of"utilizing the convenience of position"to how to identify"utilizing the convenience of position",experts and scholars hold different opinions.At present,the academic circles have said that"utilizing the convenience of the position"is the statutory component of the bribery crime,but there are still many disputes about the specific application of the element in practice.The reason why there is such a heated discussion is that the identification of the "use of convenience in the position" is of great significance for the distinction between crime and non-crime,duty crime and property crime.In fact,the connotation of the "utilizing of the convenience of the position" is not static.On the contrary,with the development of society,the upgrading of criminal means and methods,its connotation is also deepening.This requires the theory and practice to fully take into account this change,and then make a correct interpretation and judgment of the legislative intent of the crime of accepting bribes and the need to combat bribery.With the renewal of the crime form of "utilizing of the convenience of the position",the theoretical circle has a tendency to expand the determination of the specific scope and manifestation of Article 385 "utilizing of the convenience of the position" of the bribery crime,but in judicial practice,The application of the requirements is rather vague and general,and it cannot be clearly distinguished from the "convenience conditions for the use of power or status" in the 388 mediation of bribery.There are also shortcomings in dealing with the new bribery crimes such as "pre-employment earning" and "accounting after-accounting"In the first part of the article,the dispute between the original court and the second-instance court in the bribery case of Sun Jie on the"utilizing of the convenience of the position"determines the contradiction and conflict identified in the practice.This paper puts forward how to define the connotation and denotation of this element in the identification,how the specific scope of authority of the tenm "position" affects,what kind of the behavior of position of state functionaries and what kind of the convenience of position is the manifestation of this element,which lays the foundation for the full explanation and understanding of this element.The second part of the article traces the connotation and extension of the elements of the bribes by reviewing the development of the elements of the use of convenience.It points out that the use of convenience in the position as the constituent element of the crime of accepting bribes has always been emphasized by legislation and judicial interpretation.It is clear that the element is the indispensable element of the element of accepting bribes,and with the development of society,the connotation of the element is gradually becoming clear and clear.In the third part of the article,through a detailed interpretation of the term"position"in"utilizing the convenience of position",the connotation and denotation of the term "position" are clarified from the point of view of concept combined with judicial practice,and several confusing concepts are distinguished.Through comparative analysis of relevant legislation outside the country,it is pointed out that the understanding of the elements of position should not be confined to official acts,and it should be recognized that the use of the term should be realized.The existence of the position itself is the existence of the situation of accepting bribes.Through reviewing the historical process of the development of this element,it is clear that this element is an important component of the objective aspect of the crime of bribery and bribery is the core embodiment of the essence of the transaction of power and money in the crime of bribery,which is the condition to distinguish the crime of dereliction of duty from the crime of property.It is clear that the use of the convenience of the position is not the element of the act of accepting bribes,but the precondition for the actor to constitute the crime of accepting bribes.The fourth part of the article defines and analyzes the various situations in the bribery of "utilizing of the convenience of the position".It is divided into seven categories.Combined with domestic and international cases,the basic expressions of the requirements in practice are analyzed.The corresponding difficult points are analyzed and explained.Through the analysis of the expression of the requirements,it is proposed that when applying the requirements,we should focus on the relationship between the duties or duties and the receipt of property,and emphasize that the implementation of the request for the trustees benefits from the exercise of the public power of the actor,including proper Exercise and improper exercise.The fifth part of the article is mainly about the analysis of several difficult problems in the judicial practice of the crime of accepting bribes "utilizing the convenience of position".Emphasis is laid on the distinction between the convenience of position and the convenience of working conditions,the disputes over the nature of pre-service bribery and the analysis of conviction,the classification and identification of post-service bribery,the discrimination between "utilizing the convenience of position"and"utilizing convenient conditions for the formation of posts or positions "in mediating bribery,and the identification of "utilizing the convenience of position" in"power-money transaction" and "labor transaction".In the identification of these difficult problems,the author believes that the nature and connotation of "position"should be emphasized.When the position responsibilities have the dual attributes of duties and services,it is necessary to combine the requirements of the petitioners with the nature of the behavior of the perpetrators.In pre-service and post-service bribery,it is emphasized that the nature of the transaction of "power" and "money" in the crime of bribery does not require a chronological order.It is clear that the subjective intention of the crime of bribery is that the actor has the intention to sell his position,whether in lawful position or in abuse of his power,so long as the actor realizes that the property given by the trustee is the consideration or remuneration of his position or duty,whether the actor is in or out of office at this time,it should constitute the crime of accepting bribes.Although there is no agreement on the acceptance of property after the actor leaves his position,if both the actor and the trustee make it clear that the property given by him is the remuneration of the actor's position or his behaviors of position,in this case,although the actor has no subject identity,his subjective intention does not need the support of identity,at this time,the actor's subjective intention of accepting bribes traces back to the time of his position.Therefore,it conforms to the essence of bribery"power-money transaction".Therefore,it is not only in line with the trend that judicial interpretation gradually expands the interpretation of "utilizing the convenience of position" but also in line with the current criminal policy of punishing the crime of taking advantage of position severely by means of legislative interpretation,judicial interpretation or new legislation to extend the "utilizing the convenience of position" of bribery crime to utilizing the convenience of past position and utilizing the convenience of future position.This article focuses on putting forward questions in practice and finding answers in theory,and strives to make the criteria of "utilizing the convenience of position" in bribery crime more uniform in judicial practice and more in line with legislative purposes.