Research On The Crime Of Forced Transactions

The Criminal Law of the People's Republic of China(1997)stipulates the crime of forced transactions(the “Crime” for short)with a view to cracking down on the activities of buying or selling goods by violence or threat.However,th e rapid development of market economy has been accompanied with more and more means and forms of transactions.In response to the new situation,the Amendment VIII to the Criminal Law promulgated in 2011 amends the article to include three more types of transactions and a heavier prescribed punishment.This paper analyzes the constitutive characteristics and judicial determ ination of the Crim e,and proposes suggestions for im proving the de fective legal provision s currently in effe ct.This paper is composed of three parts.The first part is about the constitutive characteristics of the Crime.This part first states the object of th e Crime and then,by analyzing form er theories and understanding the new provisions in the Am endment VIII,points out that the object of the Crime is the market transaction order featuring free competition and the legitimate rights and interests of trading counterparts.Following that,this part analyzes the objective aspect of the Crime,defines the means of violence and threat,indicates that the targets of such vi olence are just trading counterparts,confines the violence to the slight level,and explains one by one the five types of forced transactions.Finally,this part analyzes the subject and subjective aspect of the Crime.As it shows,th e subject unlimitedly includes natural persons an d entities,w hile the s ubjective aspect is just direct intent.The second part is abou t the judicial determination of the Crime.First of all,this p art distinguishes the Crime from general transaction disputes and ge neral offenses,with special focus on explaining “serious ci rcumstances”,the standards for conviction.Next,this part distinguishes the Crime from the crime of robbery and the crime of extortion,with special focus on analyzing the differences in the object,objective aspect,subject and subjective aspect as well as the judicial determination of these crimes.At last,this part analyzes the criminal patterns of the Crime and points out that different from conduct crimes in general,the Crim e is a circumstance one.Then this p art describes the standards for judging whether the Crime is accomplished or not,analyzes the patterns of crime number,discusses the circumstances where the Crime constitutes the imaginative joinder of offenses or implicated offense,and elaborates on the circumstances of combined punishment for several offenses.The third part is abo ut the defects o f legal p rovisions concerning the Crim e and the suggestions for improvement.At the outset this part points out that the Crime is insufficiently stipulated in the existing law.To be specific,the way of act and the form of transaction are narrowly restricted,“serious circumstances” are am biguously stated,and the punishm ent is slightly prescribed.A ccording to the reality,this part then puts forw ard suggestions for improvement,such as issuing a judicial interpretation on “serious circumstances”,enriching the article to co ver more types of transactions,and properly rais ing the level of prescribed punishment to highlight the role of the Criminal Law.