| "Taking advantage of one’s position" is the core constitutive element of the crime of duty embezzlement,which is the key to distinguish this crime from that crime.However,in judicial practice,this requirement is often formalized interpretation,resulting in the identification standard is not uniform,resulting in the application of the crime is improperly limited or arbitrarily expanded,resulting in the confusion of judicial identification.In the theoretical circle,the formal interpretation of this requirement can be divided into four theories: the theory of supervisor,management,handling,the theory of authority convenience,the theory of work convenience and the theory of responsibility convenience.However,these four theories have their own limitations.In view of this,it is of great significance to make clear the essential connotation and relevant denotation of this requirement,and make a substantive interpretation of this requirement.In order to correctly identify the "taking advantage of the convenience of the position" in the crime of duty embezzlement,it is necessary to make a substantive interpretation of this requirement,which should be solved through the following ways.First,based on the "dual legal interest theory" standpoint of substantive interpretation.The "unitary theory of legal interest" holds that the crime only infringes the property rights of the unit,while the "dual theory of legal interest" holds that the crime not only infringes the property rights of the unit,but also infringes the public rights."Single legal interest theory" does not understand the purpose and original intention of the legislator,and its reasons cannot refute "double legal interest theory".No matter from the historical source,or from the legislative situation in recent years,it can be interpreted that the crime of duty encroachment is established with reference to the crime of embezzlement,and public power is the protection benefit of this crime.In addition,in order to better adapt to the market,the company,enterprise and unit will inevitably give certain power to the staff,the staff in the process of performing their duties reflects the will of the unit,so in this case,if the staff use the convenience of the position to violate the property of the unit,it will violate the integrity of public power or duty behavior.Therefore,to correctly identify "taking advantage of the convenience of position",we must base on the theory of "double legal interests".Second,based on the purposive interpretation of the position of the scope of the standard evaluation.Since this crime infringes on public power,and "duty" can reflect this legal interest,so we should consider infringement on public power as its scope of interpretation.When defining the scope of "position",formal interpretation should be avoided,and the scope of "position" should be correctly identified regardless of whether it is engaged in management business or continuous business.Just judge whether it infringes on the legal interests of public power or the integrity of official conduct.Thirdly,according to the position of "double legal interest theory",it is determined that the essence of "taking advantage of the convenience of position" is to take advantage of the position of controlling and dominating the property of the unit.And this status is because the unit delivered to the doer and produced,it is because of this status,the implementation of work tasks will reflect the will of the unit,there is the responsibility for the integrity of the organization.Fourthly,transform the above abstract academic interpretation into concrete identification methods.The theoretical interpretation above is too abstract and is not suitable for the complicated and specific judicial practice.Therefore,it is necessary to design operable specific identification rules according to the true connotation of the requirement,so that the essential connotation of the requirement can be reflected in practice.The specific contents include: the actual possession of the property of the unit is the premise of identification;Independent control and control of the property of the unit is the key to the identification;It is thought that there is a causal relationship between illegal appropriation of unit property and use of position.This paper hopes to play a useful reference role in judicial practice,and to further improve the judicial identification of the elements of "taking advantage of position convenience" in the crime of duty embezzlement,so as to realize the fairness and justice of criminal law. |
