Research On The Criminal Law Regulation Of Debt Claim With Soft Violence

Debt claim with soft violence refers to a non-violent act of using coercion,intimidation,harassment and other means to inflict mental violence on the debtor in order to achieve the purpose of debt claim.In recent years,with the strengthening of the crackdown on violent debt demand by the state,the behavior of using soft violence means to demand debt is increasing with the time goes by.As the fairness of debt claim with soft violence is intertwined with the legitimate purpose of the actor to exercise the claim,and the provisions of the legislation on the way of conduct and the nature of the debt of the soft violence are relatively vague,which brings trouble to the social harmfulness of debt claim with soft violence in judicial practice.Therefore,it is of great theoretical significance and practical value to study the criminal law regulation of debt claim with soft violence.In terms of its theoretical significance,the study on debt claim with soft violence can deepen the understanding of the means of spiritual violence in criminal law and refine the normative evaluation of different types of debt on subjective vicious.As far as the practical value is concerned,it is conducive to define the purpose of debt claim with soft violence and debt claim at the legislative level,and then to provide the judgment standard for judicial personnel to identify debt claim with soft violence.There are nearly 40,000 words in this paper,which are divided into the following four parts.It mainly discusses the concept and nature of debt claim with soft violence,the problems existing in criminal law regulation,the principle of criminal law regulation and the perfection of criminal law regulation,the details are as follows:Section 1: Overview of debt claim with soft violence.This part mainly defines the concept and nature of debt claim with soft violence.First of all,based on the analysis of the relationship between soft violence and violence,this paper compares the different forms of soft violence in the crime of evil force and the common crime,and sums up the concept of soft violence behavior in criminal law.Through the combination of soft violence behavior and folk debt-seeking behavior,this paper illustrates that the connotation of debt claim with soft violence is not carried out through the legal neutral third party,and has the essence of spiritual violence,and social harmfulness of creditor's rights relief behavior,which is characterized by indirect violence,abstractness of harm and concealment of the law.Moreover,the extension of debt claim with soft violence includes coerced debt-seeking behavior and disturbance-type debt-seeking behavior.Debt claim with soft violence has the nature of private relief,and the limit of the regulation of the criminal law is related to the perfection of the public remedy.Section 2: Current situation of criminal law regulation of debt claim with soft violence.This part focuses on the legislative and judicial aspects of the current situation and problems of the regulation of debt claim with soft violence.The regulation of debt claim with soft violence in China's current criminal law is scattered in crimes of violating personal freedom,property interests and social order.Through sorting out the four typical crimes of illegal detention,kidnapping,extortion and provocative and causing trouble,this paper finds that the legislation lacks clarity in the nature of article 238(3)of Criminal Law.Typical charges do not distinguish the type of debt,there are inadequate regulations for the use of communication to disrupt the lives of others and closely track harassment of the debt behavior and so on.In the judicial practice,through the analysis of two cases of claiming debt by restricting the freedom of others,this paper finds that the judicial determination is more chaotic,the subjective malignant evaluation of debt claim is confused and the evaluation of conviction and sentencing is different.Section 3: The principle of criminal law regulation of debt claim with soft violence.This part mainly discusses the influence of the principle of modesty of criminal law,the principle of legality,the principle of adaptation of criminal responsibility and punishment and the principle of offending on the limit of criminal regulation of debt claim with soft violence.First,the principle of legality requires that criminal law regulate debt claim with soft violence must comprehensively consider the prevention and control effect,necessity and efficiency of penalty to the act,and take into account both legal and social effects.Second,principle of a legally prescribed punishment for a specified crime requires that criminal law regulate debt claim with soft violence should be grasped from the substantive level of form,should not be interpreted by analogy,but should pay attention to the clarity and scientific nature of legislation.This paper clarifies the types of debts in the provisions on the purpose of claiming debts in the crime of illegal detention,and judges the social harmfulness of this act by integrating various subjective and objective factors.Third,principle of suiting punishment to crime demands to pay attention to the influence of the special relationship between the two sides of the debt dispute on the standard evaluation of subjective malignancy,objective harm and the implementation of criminal policy of temper justice with mercy,and to lenient the soft violence bondholders.Fourth,the offense principle requires not only a full understanding of the harmfulness of debt demand by harassment,but also a prudent attitude towards regulation and comprehensive consideration of the object of infringement,the severity of the offence,and avoidable sex,and so on,so as to avoid excessive interference in citizens' social activities by criminal law.Section 4: The criminal law regulation of debt claim with soft violence is perfect.This part mainly puts forward countermeasures to the problems of lack of clarity in legislation and confusion in judicial cognizance.At the legislative level,we should strengthen the clarity of legislation,clarify the nature of the provisions of article 238.3,of the Criminal Law,and distinguish the types of debts in typical crimes according to subjective malignancy.Only by adhering to principle of necessity can we regulate the behavior of communication harassment and personal stalking harassment in order to achieve the abominable circumstances of the crime of defiance and nuisance.At the judicial level,to construct the judicial standards.On the basis of the particularity of debt dispute,according to the particularity of debt dispute,we should first take the theory of criminal motivation as the basis,to the subject and object of behavior,and the situation of motive transformation,in the case of imaginary concurrence or overlap of part of constituent elements in the normative evaluation of debt claim with soft violence.The combination of the nature of the debt and the appropriate means and the object and other factors reflect the subjective malignant construction of the typology of the criteria.Moreover,we should make a comprehensive consideration of the subjective malignant judgment criterion and the objective behavior,the infringement of legal interests,and the gradual determination of the conviction and sentencing of the behavior with different social harmfulness and personal danger,and we should carry on the comprehensive consideration to the subjective malignant judgment standard and the objective behavior.Provide the judgment basis for the judicial determination and realize the balance between the legal effect and the social effect.Finally,this paper makes a detailed analysis on how to use the standard by debt claim with soft violence,which limits personal freedom and verifies the feasibility of the standard with practical cases.As a matter of fact,the deeper difficulty of regulating Debt claim with soft violence in criminal law lies in how to prove that this kind of means of mental violence has reached the degree of serious social harm and how to judge the tolerance degree of this kind of behavior in this society.As for these problems,there is not enough research in the field of criminal law at present,which also shows that criminal law does not pay enough attention to the mental violence.At present,more and more researches have been carried out on this issue in the field of domestic violence,and the criminal regulation of mental violence needs to be further studied.