Execution Of Rights And Property Crime

Self-help within reasonable limits is recognized by civil law,but does excessive private remedy necessarily constitute a crime? This article focuses on the relationship between the exercise of rights and property crime,and tries to form a systematic summary the on the basis of the unity of legal order,the relationship between criminal law and pre-law,the causality and non-causality of property crime.When we evaluate the property crime whether we should consider the civil basic relationship,if so,which level of the evaluation system is this element located,and what is its evaluation effectiveness?The theory is mainly divided into three parts:(1)the theory of protecting legal interests of property crime.By analyzing the theory of German and Japanese criminal law,German theory is more explanatory and this paper adopts the law-economy property theory;(2)judging theory of illegality and the relationship between criminal law and pre-law,and the cause and non-cause of property crime are closely related to the theory of unity of legal order.This paper consider the causality of property crime as the civil basic relationship,through the analysis whether the establishment of property crime absorbs the civil basic relationship,if we consider what level it will beplaced in,we can finally draw the conclusion of adopting the theory of illegal relativity;(3)Based on the above conclusions,we can discuss the determination standard,which is generally divided into "the exercise of legitimate rights(legal real rights,claims)" and "the exercise of legal rights(legal real rights and claims)"and“ the exercise of rights not protected by law(debt paid for illegal reasons,natural debt)".With the principle of the decriminalization of property crime and the exception of the crime under special circumstances,this paper concludes universal criteria of judgment from the point of illegal relativity including the following four parts:The first part clarifies the concept of "exercise of rights" in the context of criminal law from the perspectives of "rights","object of rights","means of exercise of rights" and "types of exercising rights".On the level of "rights",this paper adopts the principle of subjectivism,and holds that rights are reasonable evidence in private law advocated by actors(the situation of exercising public law rights is not discussed in this paper),which is characterized by non-restriction,uncertainty,subjectivity,incomplete conformity with civil norms,and is not limited to legality.It also includes "rights" which are not protected by law including debt paid for illegal reasons and natural creditor's rights(this paper omits the discussion of illegal real rights because it has been involved in the protection of legal interests of property crimes).On the level of "object of right",this paper compares the Japanese model with the German model,and holds that the theory of legal interest of property crime in Germany is more explanatory,so it adopts the theory of property of law-economy.At the level of "means of exercising rights",this paper divides means into acts censured by the overall legal order,and acts with the effective appearance of pre-law under the private law order but criminal illegality.On the level of "types of exercise of rights",based on the division of rights,this paper classifies the exercise of rights into two categories: the exercise of legitimate rights and the exercise of rights not protected by law.At the same time,combining with the development of comparative law in Britain,America,Germany and Japan,this paper discusses the evolution of the theory andpractice of the exercise of rights,and its enlightenment to the theory of criminal law in China.The second part elaborates property crime and the theory of illegality judgement,and sorts out the representative theories.This part clarifies the relativity of illegality judgment under the unit of legal order,and combines the three-level theory concluding the judging path of whether the exercise of rights is convicted of property crime based on the theory of illegality relativity.Do not decide the illegality of criminal law on the premise of the illegality of pre-law.In the stage of components,we insist on the independent judgment of criminal law.In the stage of illegality,we regard "civil legal relationship" as the reference element of decriminalization which determine the size of illegality rather than whether it exists,and make substantive judgments on whether the acts are punishable illegality from the perspective of legal order combining with the social equivalence of acts.If the degree of illegality is low,it will not fall into the scope of criminal law regulation.The third part combines the logical path of theory of illegal relativity described in the second part.Firstly,it discusses the validity of pre-law acts as causal acts and criminal illegality.Criminal illegality does not necessarily lead to invalidity of pre-law acts,and thus the pre-law rights obtained are not invalid.If the appearance of the effective rights of pre-law conceals the essence of criminal acts,property crimes may be established.In this part,the relationship between the exercise of legal creditor's rights,property rights and property crimes is discussed in the way of dichotomy of property and debt.It is discussed from the perspectives of "counterplead right of the relative person","replaceable and irreplaceable thing","creditor's rights quota","relative person has no right or right to possess","claim for compensation or accept compensation by default".In the fourth part,on the basis of dividing the concepts of debt paid for illegal reasons from natural debt,and taking gambling debt and capital-lynching as examples,it is divided into four categories: the relative person cheats property or services,whether the actor can ask for repayment,whether the actor can ask forpayment,and the actor exempts debt by violence or menace.The criteria for judging the crime of property is extracted separately under the circumstance of the debt paid for illegal reasons and natural debt.