Research On The Objective Aspects Of The Crime Of Forced Transaction

The crime of forced transaction was first established in the Criminal Law of1997.At the beginning,it listed two types of forced transactions: forcing others to sell or buy goods and forcing others to provide or accept service with violence or threats.The purpose of the crime was to maintain the freedom and fairness of the market economic order and to protect the rights of traders.With the rapid development of the market economy,new types and forms of transactions are becoming more frequent.The methods of forced trading that disrupt the order of the normal market are also gradually diversified.The phenomenon that to control the market and to buy or sell by using compulsion has gradually increased,and such crimes are often related with the action of organization which nature is organized crime,and the social harm has also increased,which increased the difficulty of identifying the crime of forced trading.In order to comply with the trend,Criminal Law Amendment(Eight)in 2011 made major amendments to the crime of forced trading,added three new types of trading behavior,and increased the extent for discretionary action of sentencing.Although the legislators have made corresponding amendments to this crime,the succinct expression of the crime in the provisions of the Criminal Law,there are also omissions in judicial interpretation.Combined with the current theoretical research,compared with some other crimes,the research of this crime is still in a relativelybackward stage,especially the inadequate understanding and grasp of the objective aspects of this crime.The empirical research finds that the main dilemma and controversy of crime in the trial practice are obvious and the identification of the objective aspects of the crime is controversial.Therefore,the article intends to the research of the objective aspects of this crime,analyzes the purpose behavior and means behavior of the crime,and distinguishes from other objective elements of related crimes.And provide a theoretical basis for judicial practice.According to this idea,the article is divided into four parts.The first part is the status and controversy of the objective aspects of forced transaction crime.It mainly searches and sorts out relevant cases through empirical research,and finds the status and dilemma of the trial practice in the objective aspects of this crime.Among them,the main problem in the judicial determination of the objective aspects of the crime is that the connotation and nature of the transaction behavior of the crime is unknown,the identification of compulsive behavior is difficult,the standard of serious circumstances of the crime is not clear,and the crime of forced transaction and its related crimes,such as robbery,extortion and defiance,are controversial in judicial application.The second part is the understanding and grasp of the transaction behavior of the crime,which mainly focuses on the issue of the "transaction" of the crime of forced transaction.First,it interprets the five types of transaction behaviors stipulated in the current Criminal Law,and specifically analyzes the understanding of "specific business activities" from the perspective of legal interpretation.Secondly,it mainly identifies the nature of transaction behaviors,elaborates and analyzes the voluntary,fairness and rank relationship of transactions,and whether illegal and non-market transactions are the "transactions" in this crime.The author believes that compared with the fairness and voluntary of the transaction,the law focuses more on protecting the right of free choice in the transaction,and on the basis of which the fairness of the transaction is taken into account;this crime aims to protect the normal and legal market order,so the illegal and non-market transactions should not belong to the scope of this crime;transactions of this crime can include profiteering transactions,but the "symbolic transaction" of ultra-profiteering should be considered to other crime.The third part is the means behavior of forced transaction,which is mainly to further clarify the implementation of the act of the means behavior,as well as the object,degree and time of implementation.In this regard,the author believes that the means and acts of this crime are violence and threats,and the "soft violence" should also belong to the violence in this crime;the object of violence should be limited to the physical body of a natural person and can only be made against the body of the person.The extent of the violent acts in this crime does not need to be intentionally defined,and the effect of punishment can be achieved by distinguishing according to the subjective aspects of the perpetrators.For the judgment of the implementation time of forced acts,it should be analyzed whether the purpose of violence and threats is to complete the transaction,whether the content of the implementation is sufficient to force the transaction,in other words,the compulsory behavior of the actor may occur at various stages in the transaction,and comprehensive judgment is required.The fourth part is the discrimination of the objective elements of the crime of forced trade and its related crimes.Firstly,clarified the boundary between the crime of forced trade and non-crime,and emphasized the identification standards of the "serious circumstances" and "particularly serious circumstances" of the crime.Secondly,based on the argument of the objective elements of the crime of forced transactions,a more systematic distinction was made between this crime and the crimes of robbery,extortion,and defiance.The distinguishing standard of the crime boundary,in order to solve the qualitative problem in the judicial determination of the crime of forced trade,with a view to providing appropriate theoretical guidance for better fighting crime.