A Study On The Determination Of The Nature Of Criminal Law Of Petitioning For Money

In recent years,there have been more and more incidents to solve the claims by petitioning to the higher authorities for help even abnormal petition,and some petitioners even threaten to ask the government for money,which has aroused widespread concern in society.There are many disputes in academia and judicial practice about the nature of petitioners' threatening to ask for money,with the main controversy in whether the act constitutes a crime,and if so,what kind of crime it constitutes.This thesis takes the example of a case of A Zeng's provocation,makes in-depth legal analysis,and finds that the act of the Zeng should constitute the crime of provocation,expecting to provide a feasible reference for the handling of such cases in judicial practice.This thesis consists of four parts.Part One introduces the basic situation of the case.On May 18,2008,the Zeng's adopted daughter accidentally fell to death.The Zeng disagreed with the decision of the Public Security Bureau of Dianjiang County not to file a case.He believed that her daughter had been killed by another Zeng,and that the police committed malfeasance.Therefore,the Zeng asked to investigate another Zeng's criminal liability and the malfeasance of the police,and the compensation of hundreds of thousands of RMB by the State.The Zeng was still unsatisfactory after the handling by relevant authorities in accordance with law.Since 2008,he has been petitioning the related county,city and Beijing for a long time,with many entangled petitions.During this period,he has visited many times and asked the Guiyang Sub-district Office of Dianjiang County for more than 50,000 yuan in total on the grounds of petitioning in Beijing without giving money.There are three different opinions on the handling of the case: the Zeng's act does not constitute a crime,the Zeng's act constitutes extortion,and the Zeng's act constitutes provocation.Three controversial focuses can be sorted out in different opinions: whether the Zeng has the purpose of illegal possession subjectively,whether the government can be the object of extortion,and how to distinguish the crime of extortion from the crime of provocation.Part Two is Jurisprudential analysis.Firstly,this part analyses the connotation of the purpose of illegal possession,proposes whether it has the purpose of illegal possession subjectively by means of criminal presumption,and further elaborates that in the situation of using threat and coercion to exercise the right to claim money,it is necessary to find out “whether the actor has the basis of right,whether the contents of threats and coercion are related to the basic facts of the exercise of rights,and whether the exercise of rights within is the reasonable range” in determining illegal possession.Secondly,this part analyses the nature of the government's power,the difference between the government's will and the will of the government staff,and the primitive values of the people,and draws the conclusion that the government can not be the object of extortion.Thirdly,this part analyses the differences between extortion and provocation in three aspects: subjective,objective and object.Part Three is the conclusion of this case.This part demonstrates from four aspects,and draws the conclusion that the Zeng constitutes the crime of provocation.First,the Zeng's act has serious social harmfulness,resulting in necessary criminal punishment.Secondly,the Zeng's claim for money lacks facts and legal basis.Knowing that he had no right to claim money,he did so in the name of his petition,which has the purpose of illegal possession subjectively.Thirdly,Guiyang Sub-district Office,as the dispatched organ of the county government,has not been threatened or coerced,so the Zeng's act does not constitute extortion.Fourthly,the Zeng's act conforms to the constitutive requirements of the crime of forcibly taking aggressive offence and should constitute aggressive offence.Part Four is the enlightenment of the case study.This part proposes three suggestions.First,it is required to strengthen the training and management of the staff of the government and related authorities,especially the complaints and proposals authorities and improve their working competence and level so as to effectively prevent and reduce the occurrence and spread of non-visits.Second,it is required increase the publicity of complaints and proposals in accordance with law and punished non-petitions.Thirdly,the discussion and summary of the typed cases can help the promulgation of the judicial interpretation or guidance cases.