The Criminal Law Analysis Of The Boundary Between The Exercise Of Creditor’s Rights And The Crime Involving Property

In the modern society,the Constitution and the law endow the citizen with the right,and provide the channel of the public relief for the infringed.Therefore,when the rights of citizens are violated by others,they should seek relief through proper channels,which is the basic requirement of the modern rule of law.But that’s not always the case.In the practice of criminal justice,it is still common for citizens to realize their legitimate creditor’s rights by such illegal means as detaining,detaining,stealing,robbing,robbing and extorting.The theory of Criminal Law of our country has reached a basic consensus on the criminal nature of the exercise of creditor’s rights,that is,the exercise of creditor’s rights does not constitute a crime involving property in principle,but it may constitute a crime because of its illegal means.However,it must be pointed out that there are still some problems: on the one hand,there are still disputes and differences on the understanding of the legal basis and theoretical basis of the decriminalization of creditor’s rights in Criminal Law;on the other hand,it is a practical problem that the judicial practice often deviates in defining the nature of the cases in which the creditor’s rights are exercised,and different judiciary judge the same case to the contrary,resulting in a great difference between the defendant’s guilt and innocence.Therefore,this article plans from the theory and the practice two stratification planes embarks,carries on the discussion and the analysis to the creditor’s right exercise and the property crime boundary question.First of all,the exercise of creditor’s rights is defined in Criminal Law,so as to distinguish it from non-exercise of creditor’s rights;Second of all,the theoretical disputes between exercise of creditor’s rights and property-related crime are sorted out and commented on;Third,this paper puts forward some suggestions on how to correctly grasp the boundary between creditor’s rights exercise and property-related crime in judicial practice,and analyzes the most typical creditor’s rights exercise with cases.In addition to the introduction and conclusion,this paper also includes three parts:The first chapter is a theoretical overview of the boundary between the exercise of creditor’s rights and property-related crime.First of all,the meaning of the exercise of creditor’s rights is defined.The exercise of creditor’s rights refers to the behavior that the actor carries out illegal means to the opposite party in order to realize the purpose of creditor’s rights.As for the illegal means here,specifically includes theft,fraud,extortion,robbery,robbery of other people’s property or seizure,detention of other people to demand property and so on.Secondly,it makes clear the characteristics of the exercise of creditor’s rights,one is that the actor has creditor’s rights to others,the other is that the actor has implemented illegal means.Thirdly,the meaning of the crime involving money is clarified.Property-related crime refers to crimes involving property,including property crime and kidnapping for ransom.Finally,the paper expounds the boundary between the exercise of creditor’s rights and the crime involving property.There is both consensus and controversy in the theoretical circle of criminal law,the consensus is that the exercise of creditor’s rights does not constitute a crime involving property in principle,and the dispute is that the legal basis and theoretical basis of the exercise of creditor’s rights do not constitute a crime involving property are not understood in accordance with each other.And the deviation in the judicial practice was sorted out and summarized,in a clear consensus and disputes under the premise of preparation for the following.The second chapter is the analysis of the theoretical dispute between the exercise of creditor’s rights and the property-related crime.First of all,the third paragraph of Article 238 of the Criminal Law is the legal basis of the non-establishment of property-related crime in the exercise of creditor’s rights.The significance of the argument lies in the explanation that the exercise of creditor’s rights does not constitute property-related crime at the proper stage of crime formation or the illegal stage.Combining the difference between the provisions of attention and legal fiction and the nature of the crime of illegal detention for debt collection and the crime of kidnapping for ransom,this article holds that this provision belongs to the provisions of attention,therefore,the reason why the exercise of creditor’s rights does not constitute the crime of money-related is that it has not realized the element of money-related Crime.Secondly,on the basis of paying attention to the provisions,this paper holds that the view should be taken as the proper nature of the subjective constitutive elements,that is,the theoretical basis for the exercise of creditor’s rights does not have the proper nature of the constitutive elements lies in the fact that the actor does not have the purpose of illegal possession,instead of causing no damage to property.Therefore,in specific cases,we should focus on the purpose of illegal possession analysis,so as to correctly grasp the exercise of creditor’s rights of the criminal statutory nature.Moreover,we should stick to the two principles of presumption and falsification to determine the purpose of illegal possession.The third chapter is to carry on the practice level development to the creditor’s rights exercise and the property-related Crime Boundary Question.First of all,this article takes the creditor’s rights exercise and the extortion crime as the angle of view,unifies the concrete case to launch the analysis.In such cases,it should be based on the principle of consistency between the subjective and objective,from an objective analysis of whether the perpetrator’s illegal act of extorting money can be evaluated as extortion in Criminal Law,in the subjective analysis of whether the perpetrator has the purpose of illegal possession.The key of the latter lies in the fact that when the two parties have an objective relationship between creditor and debtor,but the amount of the specific debt is in dispute,whether the actor can be found to have the purpose of illegal possession by demanding excessive and improper compensation.Therefore,the author thinks that it is generally possible to deny that the actor has the purpose of illegal possession,so it is not appropriate to punish such cases with the conviction of crimes involving property.Secondly,this paper analyzes the boundary between the exercise of creditor’s rights and the crime of theft,and objectively discusses the cognizance of the act of secret stealing,and subjectively discusses the influencing factors of the cognizance of the purpose of illegal possession.Finally,it is emphasized that the principle of objectivity to subjectivity should be adhered to in dealing with such cases.