The Criminal Law Application Of The Act Of Excessive Rights Protection

With the development of economy and society,people's awareness of right has been enhanced,numerous excessive rights protection behaviors have been emerging,which have attracted extensive attention in society.Whether the behavior of excessive rights protection constitutes the crime of extortion has always been the difficulty of judicial practice and the hot spot of theoretical discussion.At present,whether the excessive rights protection behavior constitutes the crime of extortion is controversial and the similar case having different judgment is frequent in judicial practice,so this paper will discuss this controversial issue in three parts.In the first part,the meaning of excessive rights protection behavior which is defined by the author is that using the ultra means such as violence or overcharge to safeguard the rights of themselves.And the author analyzes the general characteristics of excessive rights protection behavior in three aspects.The cause is that the actor's legitimate right and interest is infringed,and the actor's position is weak compared with operators and government actors,and the actor's rights protection means are excessive means or high claims.Then,the author divides various excessive rights protection cases into two categories according to the certainty of the content of the rights,that is the rights with uncertain content and the rights with certain content.In the second part,based on the above cases and relevant data from pkulaw.cn,the author analyzes the judicial status of excessive rights protection behavior which is applicable to the crime of extortion.Currently,when the criminal law is applied to evaluate excessive rights protection behavior,there are three characteristics: different conviction and punishment,low conviction rate of consumers' exposure of rights,and lots of unfinished extortion crime.Whether excessive rights act constitutes the crime of extortion in judicial practice,dispute mainly focus on three points: whether human rights can stop the illegality of safeguarding rights act,whether high compensation can prove the offender has the purpose of illegal possession,whether legal means such as exposure,reporting,petition belong to intimidation,whether the government can be regarded as the object of the crime of extortion.In the third part,the author theoretically analyzes whether the behavior of safeguarding rights constitutes the crime of extortion.First The author analyzes thebalance of legal interests in excessive rights protection and examines the possibility of infringing public's and private's legal interests from the aspects of quality and quantity.Then combining with the constitution of extortion and the overseas experience that is the application of criminal law should adjust the country's actual situation,the author puts forward that extortion excessive safeguarding of rights needs to meet three conditions: no legal interest worthy of protection,illegal behavior mode,and subjective purpose of illegal possession.