On The Judicial Demarcation Between The Illegal Exercise Of Rights And The Crime Of Extortion

Through an empirical analysis of all judgment documents in Wolters Kluwer database that are characterized as the crime of extortion,it can be found that judicial practice faces the following difficulties when distinguishing between the illegal exercise of rights and the crime of extortion: First,how to characterize excessive rights protection activities;Second,can the act of claiming money with the threat of reporting and exposing illegal crimes be justified;third,know whether the claimant of fake purchases has the purpose of illegal possession;fourth,know whether the act of claiming fake purchases can be justified.As far as academic research is concerned,first,although the academic circle has relatively rich research results on the distinction between excessive rights protection and extortion,on the one hand,because various theories are not exhaustive and lacking in persuasiveness,they have not yet The formation of relatively unified or influential views and opinions.On the other hand,in view of the abstract and vagueness of the judgment standards of some theories,these research results are not only difficult to guide judicial practice,but are also very likely to cause misunderstandings.Second,there is currently no systematic discussion on the qualitative issue of the threat of reporting and exposing illegal crimes.Scholars either determined that it was an abuse of rights and constituted a crime without clarifying the relevant principles;or generally pointed out that the behavior did not meet the criminal constitution of the crime of extortion.At the same time,there has never been a problem of judging the purpose of illegal possession in such acts in judicial practice.Third,academic circles have seldom discussed the qualitative issue of "knowing fakes and buying fakes" asking for money.Previous studies did not make targeted judgments on the basis of subdividing this type of behavior.They only analyzed the behavior of knowing and buying fake claims in general,and the conclusions reached are inevitably unbelievable.Moreover,it regards qualitative issues as the interpretation of the constituent elements of the criminal law,and completely sticks to the perspective of criminal law.It is not only easy to cause gaps between departmental laws,it is difficult to draw systematic conclusions,and it is unable to answer the questions in judicial practice.This question,that is,how to deal with the possible conflicts between the criminal law and the pre-department law,also ignores the pursuit of purpose and rationality of the illegal class in the criminal theory system.The above analysis and comparison of the status quo of judicial practice and theoretical research shows that the current theoretical exploration is not sufficient,it means that it is difficult to resolve the difficulties in practice,and it also reflects that the clarification and resolution of related issues is imminent.Therefore,a special study should be conducted on the distinction between the illegal exercise of rights and the crime of extortion.The first chapter of the article aims to reveal the judicial dilemma of the illegal exercise of rights and the crime of extortion.That is,through empirical analysis,we can screen out the types of illegal exercise of rights that may have qualitative disputes in the process of judicial operation,and clarify the doubts and difficulties that may exist in qualitatively identifying the above types of behavior.The second chapter of the article combs the previous doctrines based on the problems in judicial practice drawn in the first chapter,and evaluates and analyzes them respectively.This leads to the mid-term conclusion of this article: theoretical research is difficult to meet the needs of practice.On the basis of summarizing the deficiencies and shortcomings of the theoretical concerns,the problems that need further research and the corresponding research plans are put forward.The third chapter is the main part of this article.Starting from the constitutive elements of the crime of extortion,clarify the criteria for defining the subjective and objective constitutive elements of this crime,and apply it to the types of behaviors that may be controversial in judicial determination.In other words,as long as a legitimate and lawful act violates the victim’s freedom of disposition of property,it meets the requirements of “threat and coercion”;while the judgment of the “purpose of illegal possession” requires reference to the identification of the pre-department law.Conclusion,but we should adhere to the "relative subordination" position of the criminal law on the issue of jurisdictional conflicts,and use the infringement of legal interests in the criminal law as the decisive investigation data.In addition,it should be noted that after the analysis of this chapter,it can be seen that the “knowledge and buy fake” claim behavior basically meets the constitutive requirements of the crime of extortion,but this does not mean that it must constitute a crime.By measuring the interests of the illegal class,The behavior may still be blocked and violated the law.The fourth chapter of the article mainly focuses on the illegality of the act of buying fake claims.It first demonstrates the legitimacy and necessity of linking criminal policies and the doctrinal system(illegal class)as a measure of interest,and then uses it to solve the problem of knowing fakes.The qualitative problem of buying fake claims.To be specific,as far as the illegal class is concerned,the jurisprudence measure only focuses on the comparison of the specific interests of both parties.Because there is no space and room for criminal policy to function,it is difficult to provide a basis for justification and cannot bear the purpose of rationality.Function may even conflict with the value pursuit of criminal policy.The theory of interest measurement is based on the overall vision of illegality judgment and focuses on the hierarchical structure of interest.It uses institutional interests as a medium to internalize policy considerations and clarify the system positioning and rule mechanism of criminal policy in the balance of interests.It can not only eliminate the arbitrary value weighing,but also avoid the closedness of system judgments,and achieve rational purpose.The pursuit.Therefore,within the framework of interest measurement,it is necessary to refer to the criminal policy’s recognition of different interests in the system of conflict of interest to derive the results of the interest measurement,and use this to judge whether the act of knowing and buying fake claims can be prevented according to the violation of laws and regulations.The reason is justified,so that the application of relevant criminal law norms is more in line with the needs of social reality.