The Systematic Interpretation Of "use Of The Convenience Of Position" In The Criminal Law

There are ten charges in the Criminal Law which regard "take advantage of one's position" or "take advantage of convenience of position" as the objective elements of criminal constitution.There are many disputes on the understanding of the elements of "take advantage of one's position "in various charges,and there is no uniform explanation yet.The crime of "take advantage of one's position" not only has a large base of criminal cases,but also has many problems in understanding this element in current practice.Firstly,it is difficult to give a definite answer to the determination of the mode of utilization;secondly,it is difficult to solve many complex problems caused by the position;thirdly,there is confusion in the distinction of charges.This is related to the current theoretical interpretation of pluralism,which focuses on the consideration of the differences among the various charges,and explains the different elements of "take advantage of one's position" in each crime,while ignoring the intrinsic relationship between the elements of "take advantage of one's position" among the charges.As a result,it is difficult to determine the boundaries of specific charges,to distinguish between this crime and that crime,and to infringe upon the predictability of the nation.The way of explanation of monism is to make use of the factor of duty convenience to understand consistently and macroscopically at first,and then adjust it according to the link of specific charges.To grasp this basic path,on the one hand,we can make up for the gap in the current interpretation,on the other hand,we can avoid the disorder in the interpretation of individual crimes.From the perspective of system,the following explanation should be given:Firstly,the identification of utilizing post convenience should include two ways of utilizing it directly and indirectly,and whether it is direct or indirect,it requires a direct correlation with the post.In the identification of indirect utilization,the most important is the judgment of restrictive relationship.Specifically,it can be divided into subordinate relationship between superiors and subordinates,constraint relationship at the same level and constraints in work.Secondly,duty is the organic unity of authority and responsibility.There should also be a distinction between duties and services,the former connotation is broader than the latter.In identifying the characteristics of the post,one is that the source of the post only needs to maintain formal legitimacy,and illegally acquired positions should be recognized as legitimate,authentic and credible when they have been certified and inspected;the other is that the post should be stable,and the exercise of the functions and powers of temporary personnel does not depend on their possession of the post,but on the entrusted behavior.The entrusted subject should not have independent subject qualification;the third is that the post must have the current nature,and future or past duties should not be included.The position used should exist objectively,otherwise it will go beyond the scope of text interpretation.In addition,the most common distinction between "take advantage of one's position" and "make use of work convenience" can be tested by the subject replacement method.The distinction between crimes committed by state functionaries and crimes committed by non-state functionaries,and crimes committed by various duty subjects can also be applied.However,this method is not omnipotent and should be treated with caution.There is a complex cross-relationship between the use of position convenience and the use of identity convenience.The type of crime of utake advantage of one's position" should belong to identity crime.Finally,there is no difference between "take advantage of one's position" and"take advantage of convenience of position".We should make a consistent understanding of the two.Although there are some similarities between "take advantage of one's position" and "duty-related crimes" the emphases of the two crimes are different.The main purpose of "take advantage of one's position" is to discuss the understanding of this element in different charges,so as to facilitate the identification of behavior mode in practice.Discussions on duty crimes in a narrow sense are mainly aimed at regulating acts that infringe on public integrity and impair the interests of the public.In order to avoid ambiguity,we should pay special attention to the rigor of the terms.