Determination Of Extortion In Excessive Rights Safeguarding

With the rapid development of the economy and the strengthening of law's popularization,citizens' awareness of rights and rights safeguarding have gradually increased.After their rights are damaged,the subject of rights often takes private ways to restore their legitimate rights and interests due to the background of Chinese society's historical "action weariness".In the case where the scope of rights is clear,there is a reference standard for the actor's rights safeguarding,which should be evaluated in law accordingly if the scope of rights is exceeded.In cases where the scope of rights is contentious,the actors are always chasing maximization of their own rights and intersts inevitably in the process of rights safeguarding,which will damage the rights of the counterparty.This kind of misconduct should be evaluated as a civil rights dispute or a crime of extortion in the criminal field.There is no uniform standard in the judicial practice.Nor has a corresponding theoretical system been formed,but the two are more inclined to apply the principle of moderation in criminal law to criminalize excessive rights safeguarding.The author believes that under the background of the rapid development of the socialist market economy,everything should be under clear rules.As to convicting of excessive rights safeguarding with the principle of “one-size-fitsall”,it is not conducive to stabilizing social economy,so this paper agree with holding to be determined view that a detailed analysis should be specific issues.This article is divided into four chapters:Firstly,in chapter 1,the viewpoints of academic circles are used to define excessive rights safeguarding behaviors,and the characteristics of excessive rights safeguarding behaviors are derived into causality,threat of means,and exaggeration of claims.Among the excessive rights safeguarding behaviors,there are several types which are the most contentious,such as consumer over-rights safeguarding,petitioningtype over-rights safeguarding and debt disputes over-rights safeguarding which is increasing notably over recent years,so this paper chooses these three types of rights safeguarding,lists the corresponding typical cases,summarizes the focus of the dispute,and then concludes the status of the same case which was repeatedly changed the charges and different judgment in similar cases.In the second chapter,the points about excessive rights safeguarding and extortion that are easy to confuse mainly focus on whether the perpetrators have the right base,exposure to the media and other means of safeguarding rights are threatening and coercive acts in the crime of extortion and extortion.It means that the perpetrator has the purpose of illegal possession of the property of others,so this chapter focuses on the analysis of the protection of legal interests,coercive behavior and illegal possession of the crime of extortion.In chapter three,the definition of excessive rights safeguarding and extortion by academia is usually a combination of important elements such as the basis of rights,the purpose of the action and the means of action.This article uses a combination of the purpose of the action and the means of action to define the two.First,the right base is divided into two cases-the determination of the right base range and the uncertainty of the right base range to determine whether the actor has the purpose of illegal possession,and an objective analysis of whether the actor's behavior is threatening.Secondly,the viewpoint held in this article is the unsettled view,that is,it does not agree with the view of unified criminalization and guilt of excessive rights safeguarding behavior,and believes that it should be combined with the specific circumstances of the case to analyze whether it constitutes the crime of extortion and blackmail.Criminal regulations are adopted,so there is a limit to the exercise of rights.The victims' faults cannot be completely exempted.The rights of infringers should also be protected on an equal basis.The legal basis of the crime of excessive rights safeguarding is analyzed.The fourth chapter analyzes whether the cases with more disputes can constitute the crime of extortion by useing the distinction criteria for excessive rights safeguarding and extortion crimes derived from the above in the three main types of disputes of excessive rights safeguarding of consumer,excessive rights safeguarding of petitions and excessive rights safeguarding of debt disputes.And then it also analyzes the typical cases listed above combined with the results of the argument to further consolidate the author's point of view that if excessive rights safeguarding acts meet the elements of the crime of extortion,it should be regulated by the criminal law.