The Controversial Issue In The Crime Of Transaction By Force

In 1997,the Criminal Law stripped the forced trading behavior from “criminal crime” and “speculative crime” and set it as a separate crime,focusing on combating the use of violence and threats to disrupt the market economic order.Subsequently,the 2011 Criminal Law Amendment(VIII)enriched the specific types of behavior of this crime.On the basis of traditional strong buying and selling of goods and services,it expanded the types of transactions and the forms of forced transactions.Despite the constant repairs and renewals of the ship “Turtus”,it is difficult to avoid a series of problems caused by the lag of law.In the past,the criminal law theory circles in China did not study this crime deeply,mainly focusing on the degree of violence,the degree of threat behavior,and the theoretical distinction between related crimes.However,this kind of research is still in the theoretical stage.Although it has obtained relatively clear conclusions in theory,it is difficult to guide the actual case judgment.When there is a huge gap between theory and practice,what we have to do is to build a bridge in it.Therefore,the author tries to connect the thinking on practical problems to the criminal law theory,and then from the reasonable understanding of the criminal law theory,to the basic case facts.This article is divided into four parts.The first part is a review of forced trading behaviors,including concepts,classifications,regulatory necessity,and the current multi-party regulations for such behavior in our laws.This chapter is divided into three sections: The first section briefly introduces the behavior of forced trading and its classification.The five types of forced trading behaviors stipulated in Article 226 of the Criminal Law of China are divided into the interference to specific market behaviors and the interference of market entities(market trading fair environment)according to different stages of intervention.According to the influence of the transaction,it is divided into promotional type and obstructive type.The second section analyzes the necessity of further regulating the forced trading behavior.The third section elaborates on the specific regulation of forced trading behavior from two aspects: non-criminal regulation and criminal regulation.The second part deals with the "obsessive" problem in the crime of forced trading.The chapter is divided into three sections: The first section aims to address the scope of the object of violence.According to the connotation of the criminal law of violence and the characteristics of this crime,the three characteristics of violence in this crime are summarized,and the violent object of this crime is not only including people but also things.The second section analyzes the degree of violence in the theoretical circle,and concludes that the degree of violence cannot determine the qualitative conclusion of this crime,and studies the degree of violence of this crime from both human and material aspects.The lower limit of this crime against the violence of the object needs to reach the degree of freedom of the victim's will,and there is no need to set an upper limit.Three points of doubt were raised regarding the view that the "large amount" is limited.And about the extent of violence against human beings.Questioning the upper limit of “slight injury” and “severe injury”proposed by the academic circle,and analyzing the possible adverse effects.There is no need to limit the extent of violence against people.In the third section,through the analysis of the case,it is concluded that the coercive means has continuity and the potential threat belongs to the category of “threat”.The third part deals with the issue of “transactionality” in the crime of forced trading.The first section explains the meaning of the transaction.Transaction is different from the meaning of criminal law in the general sense.The second section points out the uniqueness of this crime transaction.The transactions referred to in this crime should be characterized by marketability,involuntary,compensation and legitimacy.Marketability refers to the marketability of the subject matter itself,and legitimacy is the requirement of the transaction form.The third section analyzes the way in which “transactions” are identified from the perspective of judicial practice.The determination of the transaction should combine the appearance of the transaction with the purpose of the transaction.In addition,the identification of the purpose of the transaction needs to pay attention to the relationship with the purpose of illegal possession.The fourth part deals with the relationship between forced behavior and trading behavior.This part is consisted of two sections.The first section analyzes the composite relationship between compulsive behavior and trading behavior in this crime.Compulsive behavior is related to trading behavior and is intended to promote the realization of the transaction.The second section analyzes the possible trading stages of forced behavior and its impact on the qualitative nature of behavior.But in the end,it is not the stage of the forced behavior but the nature of the behavior that determines the behavior.The fifth part deals with the coincidence of the crime of forced trading and the crime of association.This chapter is divided into two sections.In the first section,the author thinks about the current situation of compulsive trading crimes and robbery crimes through real cases,and asks questions.Then,from the theoretical point of view,the author compares the differences between the two crimes,and analyzes the causes of the confusion between the two crimes.First,the objective behavior of this crime does not have typical characteristics.Second,the behavioral pattern is highly similar to robbery.Third,the subjective purpose has a logical connection with the purpose of illegal possession;fourth,the wrong guidance of the composite judgment standard;fifth,the expression of the perpetrator is unknown.Finally,the author tries to classify the four situations listed separately by classifying the two crimes from the degree of violence and the reasonable price of payment.Among them,the situation of satisfying both high violence and reasonable payment is classified according to the role of the victim.The second section mainly discusses the criminal treatment when the behavior causes serious injury and death while committing two crimes.The author believes that when the actor causes serious injury to the victim,it is a case of "especially serious circumstances" in the crime of forced trading;when the victim is killed,he still evaluates the "especially serious circumstances" in the crime,and the perpetrator should be appropriately aggravated above the statutory penalty.