On The Qualitative Research Of Extortion Act Which Threatened By The Exertion Of Rights

As it is known to all that the society have already completed the process of transition from barbaric to civilized.People can hardly survive without various kinds of rights,such as right of life,health right,property right and so on.With the development of law and society,the individual's demand for the rights and the social response to individual rights and needs are more and more frequent and understanding.The content of rights is no longer limited to the basic rights such as the right to life,the right to health,and the right to property,but expand to the content of multiple rights such as the right of personality,the right to environmental protection,and the right to compensation for mental damage.From this perspective the rights are "necessity" to guarantee social development.Criminal law is the most severe means to adjust the social life,for serious violations of national tolerance will be regulated.So it is obvious that the criminal law is the "necessities" of social development too.As the the lag of the law usually can not catch up with the timeliness of the right,so contradiction appears at times.According to the basic principles of Marxism,there are two ways of resolving the contradiction,the first way is a party eliminate the other party or on the contrary,the second way is the two sides make a deal with each other.There is no doubt that the second way is the best way,so the two "necessities" should make a deal.The diversification of rights demand is an irresistible trend,but the right can not be transformed into reality without exertion of rights.Some of the individual rights are difficult to achieve in a peaceful way for various of reasons such as the lag of the law or the social rights protection mechanism and so on.In order to realize the rights,it is necessary to turn to other ways for help,such as public relief and private relief,or just by the way of a slight deviation from the law.Accoarding them,extortion act which threatens with exertion of rights is a usual way.What is more,there is a big difference between the modern extortion and the traditional extortion as the extortion act which threatens with exertion of rights is new member of the former and protection fees usually appear in the latter.It is not a wise way to expand the extortion,so does the way to explain all the act which threatens with exertion of rights as a extortion.In order to achieve the the coordination between rights and the stability of criminal law as much as possible and take consider of both the personal rights and social intrest,it is necessary to insist the objiective interpretation and limit the scope of the extortion.As aresult,some exertion of rights will be out of the extortion.This paper with 15.3million words contains six chapters in addition to the introduction.The first chapter gives an overview of the crime of extortion and discusses the reasons for the limited interpretation of the extortion act which threatens with exertion of rights.In the part of overview,the author summarizes the concept of extortion in the perspective of comparative study and introduoce the legislative system of extortion in the criminal law of each country.Making a brief review of the development process of extortion and a statistical analysis of the current situation of extortion in the judicial practice.The reason to take a limited interpretation is that there should be a standpoint when explain the criminal law.As the criminal law is the law of rights protection,it is not possible to deviate from the purpose of the protection of the rights of the criminal law when the act of extortion threatened by the exertion of the right.The crime model of extortion has expanded from the traditional model which non-life insurance fees were claimed to modern model which exertion of the right are claimed,as a result the caiminal law must make s response.What is more,it is difficult for the legislator to predict the evolution of the extortion model,continuing to persist in subjective interpretation will make the interpretation of criminal law be away from the objective reality,so it is a must to adhere to the objective interpretation of the position of extortion to make the crime to meet the basic situation of the interpretation.As the protection of the right is not very good,is a must to insist the objective interpretation when explain the act of extortion threatened by the exertion of the right in order to declare the state's right to protect the positionit.Amon the the act of extortion threatened by the exertion of the right,the majority are customary rights which we should not be ignored.Other limited interpretation reasons include the modesty of criminal law,the stability of criminal law,judicial logic and so on.The second chapter limits the act of extortion threatened by the exertion of the right from the view of the legal interest of extortion.Before the birth of the legal interest theory,the law of infringing has experienced the theory of right infringement and the theory of money infringement.The legal interest infringement is a doctrine that is used to criticize the preceding two theories,but the legal interest is still an extremely abstract concept,and its meaning is ambiguous.The theory of legal infringement of egal interest has gained some recognition in the academia,but it has not formed a consensus in academia.Further more,it has not leveraged the dominance of social harmness theory in judicial practice.It is not advisable to insist on the macroscopic legal interest theory,on the contrary,it may repeat the mistakes of social harmness theory.The correct path is to find out the specific legal interests of the crime,and abandon the abstract concept.In the case of extortion,the specific legal interest is the property right,so the act of exercising property rights can not be extorted as extortion even if threat measures are used.The third chapter limits the act of extortion threatened by the exertion of the right in the perspective of the subjective purpose of extortion.As a member of property crime,the purpose of illegal possession is needed in the extortion crime,which is the custom of the main civil law and Anglo-American law.But the traditional connotation of the purpose of illegal possession mainly focuses on the meaning of poession and exclusion,and easily overlooked the "illegal" elements.When make the criminal evaluation of the act of extortion threatened by the exertion of the right,it is necessary to pay attention to the "illegal" elements of the illegal possession.In particular,confession fake should not be viewed as illegal possession while the uncertainty of the property requirements should not be viewed as illegal possession.The fourth chapter limits the act of extortion threatened by the exertion of the right in the perspective of the act of extortion.Extortion is a double act crime rather than a single act crime.The traditional act of extortion is mainly based on four ways: act determinism,number determinism,purpose determinism,and the immoral purpose determinism.These four paths are not very appropriate just because of certain defects,the correct path should be from the degree of coercion to extortion act identified.Specifically,any coercion will have a certain psychological impact on the other party,the impact from the victim's point of view can be divided into three levels,uneasy ? hesitation ? loss of freedom of will.From the point of view of the perpetrator of the threat,the possible objective effects are refuse to resist? difficult to resist ? unable to resist.In the case of provocation,the psychological attitude of the victim to the subjective subjective is “uneasy”.In the case of extortion,the psychological attitude caused by the extortion act is “hesitation”.In the case of robbery,the psychological attitude caused by the crime act should be a serious “loss of freedom of will”.There are four theories such as subjective determinism,basic right basis determinism,right nature determinism and social equivalence theory in criminal law judgment on the act of extortion.The correct path should be the theory of social equivalence,specifically in the judical case,the principle of proportionality and proportion should be followed,under the principle of proportion the appropriateness,necessity,balance three sub-principles should be followed.In judicial practice,minor violence can be viewed as extortion act while self-inflicted act can not be viewed as extortion act.The fifth chapter limits the act of extortion threatened by the exertion of the right in the perspective of the object of extortion.This chapter focuses on the act of extortioning the government.Viewing the government as a extortion object is not consistent with the basic theory of doctrine criminal law because of several reasons,sucn as the petition can not be evaluated as extortion act,the government is not the right relative to the people,the government as a non-natural person will not fall into fear,the government salvage can not be regarded as extortion and so on.Viewing the government as a extortion object hides a major suspicion of fishing law enforcement which is hard to be out of criminal evaluation,so it is necessary to deny the point which the government can be a object of the extortion in the perspective of criminal policy.Viewing the government as a extortion object is actually the product of "comprehensive management" thinking,in particular,comprehensive management of social security gave birth to the restrictions on personal freedom of the continuing demand.Lacking of tools is a certain result of the abolishment of the reeducation through labor.It is a penalty rather than criminal law has become an urgent need after the abolishment of the reeducation through labor.Just because of the particularity of their act,the extortion becomes a certain scapegoat.So viewing the government as a extortion object is not based on an objective explanation,but for unreasonable social needs.Chapter 6 limits the act of extortion threatened by the exertion of the right in the perspective of the amount of extortion.There are there theories of the amount for extortion,such as the elements,the punishment conditions,conditions of accomplishment.Certainly,conditions of accomplishment theory is more reasonable.Although the legislative system of extortion is a large amount of general expression,but in the fact of our judicial environment,judicial practice insists numeral amount rather than proportional amount.The numeral amount of extortion of extortion leads to the paradox that bigger amount of right get less protection.The numeral amount of extortion is a result of the utilitarian utilitarianism,but also the product of the quantitative model of legislation.In order to crack this paradox,the numeral proportional amount should be advercated.If the right basis is clear,calculating the amount of the basic right accoarding to the rules ruled in the relevant laws,setting a minimum claim amount and coefficient at the same time,the maximum amount claimed is limited to a certain multiple of the basis of the right.(a)If the amount of the fundamental >the minimum claim amount,then the max claim amount = the the fundamental amount X coefficient.(b)If the amount of the fundamental <minimum claim amount,the claim amount max = minimum claim amount X coefficient.Any,when the right of rights is not clear,the parties can claim any amount of right without being punished by the extortion.