The Research On The Judicial Determination Of The Behavior Of Safeguarding Rights With The Feature Of Extortion

With people’s consciousness of rights awakening and rising, citizens begin to safeguard their own legitimate rights and interests with legal means actively, and right protection with private ways also plays an important role in settling disputes and resolving contradictions in practice. However, when we feel happy for the prosperity of law, we experienced the maladies of excessive rights protection gradually. Especially in recent years, the methods of private rights protection have moved to the extreme gradually and various kinds of private rights protection which are so closed to the edge of the law are on the increase. This phenomenon raised a great disturbance about law and morality, regulations and the public opinions in the society. On the one hand, the ambiguity of the base of rights, the threats of the methods and the unreasonable amounts of the money which is claimed make these behaviors drift from legal act to illegal act, and wander in the gray zone between illegal behavior and crime, which has caused a huge controversy in academic circle. On the other hand, the different judgments are given on the cases which have the same nature, and the frequent changes are made on one case in practice, make the judicial authority and social justice destroyed and lost.Based on this, this paper develops itself with three parts, in which the judicial determination of the behavior of safeguarding rights with the feature of extortion is discussed. It tries to establish a set of reasonable, effective, and operable standards of judicial determination, clarifying the boundaries of crime and non-crime of the behavior of safeguarding rights with the feature of extortion.This paper can be divided into three chapters:The first chapter introduces the overview of the behavior of safeguarding rights with the feature of extortion. Firstly, it defines the discussion subject as the behavior of safeguarding rights with the feature of extortion, which refers to when certain interests are infringed, the rights protection activities that the injured party implements with his private powers, which has the appearances or suspected appearances of extortion. And it also makes a detailed description of the basic features of the behavior, laying a foundation for the further study. It is because of the authentic right base, the threatening protection methods, and the irrational amounts of the claim which lead to the complexity and difficulty in the judicial determination of the behavior of safeguarding rights with the feature of extortion. Secondly, it introduces the theoretical disputes and practical plights of the judicial determination of the behavior of safeguarding rights with the feature of extortion, and points out the current situations of the theory and practice of this behavior, which explains the background and reveals the significance for the following study. Again, it defines the legal attribute of the behavior of safeguarding rights with the feature of extortion, by including it in the category of private remedy, which lays a foundation to judge whether an act constitutes the crime of extortion or not in the later part of the thesis.The second chapter analyzes the nature of the behavior of safeguarding rights with the feature of extortion from the judicial perspective. Firstly, it demonstrates the essential connotation and constitutive elements of the crime of extortion, and suggests that the purpose of illegal possession in the subjective aspect and the methods of threat or blackmail in the objective aspect are the key points when judging an act constitutes the crime or not. Secondly, according to different scope of rights, it elaborates the cognizance of the purpose of claim in different kinds of the behavior of safeguarding rights with the feature of extortion. And it especially points out that when the scope of right is hard to define, the relationship between the amounts of money that is claimed and the purpose of illegal possession is not immutable or frozen. Instead, we should take the methods of rights protection into consideration, and discuss the question in different occasions. Thirdly, according to the nature and intensity of the method of the crime of extortion, it elaborates the cognizance of the method of claim in different kinds of the behavior of safeguarding rights with the feature of extortion. When making specific judgments, it notes that legal methods and general violations against law should be ruled out, and at the same time, we should give full attentions to the independent assessment function of the threat or blackmail method.The third chapter is about the four principles that we have to follow with when dealing with the behavior of safeguarding rights with the feature of extortion in judicial practice. To be specific, these four principles are coordinating the conflicts of the values of criminal law under the background of reality, measuring the interests protected by the criminal law on the bases of morality, selecting the regulated objects of criminal law with the consideration of human nature, and cling to the restraining principle of criminal law under the rule of law, which play an important role in providing ideational guidance and theoretical explanations for the judicial practice.