Research On Excessive Rights Protection From The Aspect Of Criminal Law

It’s high controversial in our country if excessive rights protection constitutes the property crime, no mater from the criminal law theory or in the judicial practice. At present, we are used to discussing excessive rights protection from the aspect of legal interests of property crime and substance illegality in our country. In addition, we always discuss the problem in a crime or in a case, but rarely discuss the relationship between excessive rights protection and the property crime from the aspect of the criminal law on the whole. That causes not only the high disagreements on the concept of excessive rights protection between the scholars, but also the lack of systematic classification and summary on the type of excessive rights protection, and the debate seems to have been growing intensity. It is necessary to define and comb the concept and the type of excessive rights protection in theory, and start the discussing at this logical starting point. This article is divided into four parts:Part one is the logical starting point discussing about excessive rights protection, namely the clarification of the concept of excessive rights protection. In view of the discussing about excessive rights protection, the concept of excessive rights protection from the aspect of criminal law, the definition of the scope of rights in the civil law, excessive rights protection should be defined as "one party claims creditor’s rights and acquire property with illegal means, such as robbery, burglary, cheating and threat, on the basis of the other party’s breach or infringement", containing essentials such as rights protection’s "cause-effect", method’s "inappropriateness", concept of rights’"quality of creditor’s rights"Part two is the disagreements on excessive rights protection in the theories of criminal law and precedents in domestic and overseas. There are plenty of precedents, and different punishments in different periods in German and Japan. Scholars have gone in deep and systemic research on excessive rights protection, and have different theories and different reasons, such as affirmative theory, negative theory and middle theory. In our country, there haven’t had a common dealing principal with excessive rights protection in the judicial practice, and there has been an opposition between affirmative theory and negative theory.Part three is the explanation about excessive rights protection. That legal interest in property crime, substance illegality, the concept and definition about the purpose of illegal possession are prepositional problems. There are different conclusions according to different definitions. This article advocates rectifiable real right in the legal interests of property crime on the basis of monistic illegality and the concept of private rights protection, believing legal interests of property crime include ownership in civil law, rights over the property for anther and creditor’s rights on legal occupation, and occupation on special goods such as prohibited goods for the purpose of keeping the order in special circumstances. This article advocates the dualistic paradigm of anti-value acts in substance illegality, advocates considering essentials such as method behavior and purpose behavior to judge whether there is purpose of illegal possession in excessive rights protection or not.Part four mainly discuss the classification handling of excessive rights protection in criminal judicial processing. Due to the different elements of crime in subjective and objective aspects, the dealing opinions in judicial practice are different. In the type of excessive rights protection which is according to the relationship between method behavior and achieving property behavior, when the rights claim is excessive and the method is illegal, there is possibility to constitute the property crime. In the type of excessive rights protection which is according to the concept of the right, that whether the right is expiring or not is the major basis to judge whether the behavior should be punished or not. If the right is not expiring, and there are no reasons for quality of ceasing to be illegal, the behavior constitutes the property crime. In the type of excessive rights protection which is according to the man’s subjective cognition that protecting an inexistence creditor’s right should constitutes the property crime.