The Definition Of Bribery Crime Of "Using Position Convenience"

Bribery crime is an ancient crime in the world,although the theoretical and practical circles in China have not reached a consensus on the issue of the protection of the interests of the crime,the logical starting point of argumentation above the state functionary behavior.This kind of thinking has also been fully reflected in the criminal legislation.For example,the article 385 of the criminal law of our country stipulates: "the crime of accepting bribes is that a state functionary takes advantage of his position to solicit property from others,or illegally accepts property from others to seek benefits for others." Based on this,"using position convenience" has become the key element of the establishment of bribery crime in China.In addition to the introduction,research conclusions and references,the text of this paper is divided into five chapters:Chapter one: the definition of the crime of taking advantage of position,the value of definition and the theoretical dispute.This paper mainly expounds the meaning of "taking advantage of position" of bribery crime,the value of its definition and relevant academic disputes.It should be said that the definition of "taking advantage of position" of bribery crime has both procedural value and substantive value.At present,there are "statutory authority theory","actual authority theory" and "position relevance theory" in the judgment of "taking advantage of position convenience" of bribery crime in China’s academic circle,but none of them fundamentally solve the problems in judicial practice,and even the situation of "constant cutting and disorderly sorting" appears.Although some scholars try to innovate some of these theories so as to achieve a win-win situation between theory and practice,little effect has been achieved.The reason lies in that the characteristics of "taking advantage of position" of bribery crime have not been grasped from both macro and micro levels.As a type of the elements of norms,it should be analyzed from the aspects of history,starting point of facts and logical development,and finally explore the criteria of definition.Chapter two: the historical investigation of the definition of the crime of taking advantage of position.This paper mainly expounds the evolution of the definition of "taking advantage of position" of bribery crime,and develops it from two dimensions of time and space.The lack of academic tradition of historical inheritance is an incomplete academic research.Since 1997,China’s criminal law has passed more than 20 years,which is a node worth looking back at for China’s criminal law theory.During this period,China’s criminal law experienced an unprecedented "to life and death" knowledge transformation.The understanding of "taking advantage of position convenience" of bribery crime has undergone a profound transformation due to this transformation.In terms of the evolution of the definition of "taking advantage of position" of bribery crime,it has the following characteristics: from scratch to existence,from abandonment to restoration in legislation;Legal interpretation from the liberal interpretation to expand the interpretation.The existing space of "taking advantage of position convenience" of bribery crime can be divided into: limited behavior and discretion behavior;Specific duties and general duties;Lawful and illegal official acts;My authority and the authority of others.According to the time dimension,"using job convenience" can be divided into past job behavior and future job behavior.Chapter three: the starting point of facts: the rationality of the definition of "taking advantage of job convenience".There are incontrovertible contradictions on the rationality of the definition of "taking advantage of position convenience" for bribery crime in both theoretical and practical circles.Therefore,it is necessary to face up to the rationality standard of defining the constituent elements,so as to provide a scientific way for the definition of "taking advantage of position convenience" of bribery crime.However,if we do not understand and grasp from the macro level of "taking advantage of job convenience" as the element attribute of the crime constitution,any micro analysis is mechanical and incomplete,even it is also likely to go into the error of methodology.Firstly,it is necessary to analyze the rationality criteria for defining the constituent elements.At present,there are "normative logical condition theory","explanation theory","evaluation subject theory" and "normative nature theory" in defining normative elements,but any of the above theories is too one-sided to separate normative elements from descriptive elements.Therefore,the segmentation of normative and descriptive elements should be dissolved in the judicial stage.Secondly,clarify the conflict between the traditional definition of "using job convenience" and rationality.Firstly,it overemphasizes the normative nature of behaviors and neglects the sociality.Secondly,deviate from the public recognition of criminal law;Third,it obscures the objectivity of judicial interpretation.On this basis,the author finally explores the way out to define the rationality of "job convenience".On the one hand,attach importance to the common sense,common sense and common sense in life;On the other hand return to the objectivity of judicial interpretation.Chapter four: logical expansion: clarity of the definition of "taking advantage of job convenience".In the legal context of crime and punishment,the first reaction to the definition of "taking advantage of position convenience" of bribery crime is to find the answer in the constituent elements.However,"job convenience" is a normative component element,so the resolution of its clarity problem becomes the top priority.The traditional definition approaches two extremes,showing the characteristics of abstraction and absolute clarity.It is necessary to explain the principle of definiteness of criminal law before elaborating on it.There are three kinds of concepts in the academic field about this problem: formal concept,substantive concept and mixed concept,but none of them give the true meaning of the definiteness of criminal law.It should be said that the principle of definiteness of criminal law is essentially the degree of definiteness.In short,any definition would be empty and abstract without confronting the problem head-on.The principle of clarity of criminal law is related to whether the norms of criminal law are unconstitutional and effective.The standard believes that it can be analyzed from the following two aspects: on the one hand,it is a planar consideration: the content and structure of criminal code norms;On the other hand is the three-dimensional consideration: the benchmark and scale of judgment.Combined with the above analysis,we can find the conflict between the traditional definition and the principle of clarity of criminal law.The concrete manifestation is as follows: first,deviates from the norm constitutive element judgment to the clarity principle transition fact;Secondly,it tries to deprive judges of their discretion over facts by means of substantive law.Third,it belongs to typical conceptual thinking.In order to overcome the above defects,we can try to achieve technical coordination by reaffirming the position of the principle of clarity of criminal law and advocating the type thinking.Chapter five: the definition of "taking advantage of position" : the promotion of "interactive theory".On the basis of the above analysis,the definition standard of "taking advantage of position convenience" of bribery crime also surfaced.Following the above,the dimensions to be followed in the definition should be extracted,which should not only indicate the legal nature of official behavior but also conform to the characteristics of the elements of normative elements.Then,based on these two characteristics,this paper makes a comprehensive exposition of the "interaction theory" from the perspectives of the statutory form of power exercise and social equivalence." Normal shaping" includes vertical,horizontal and supervised three kinds of patterns." Social equivalence",through reflection on the social equivalence,extracts the method of defining the fact of "taking advantage of position convenience" of bribery crime.Whatneeds to be explained is that "interaction theory" is an orderly way to define the "law" and then "social equivalence".Then analyzing the practical value of this definition standard in detail.