Judicial Determination Of Improper Debt Collection

The "Criminal Law Amendment(11)" adds the "crime of collecting illegal debts",which is based on a summary of the experience of the "special struggle against gangsters and evil" and the problems encountered in judicial practice.Before the promulgation of "Criminal Law Amendment(11)",the improper collection of illegal debts was regulated through judicial interpretation.After the promulgation of the new law,the nature of debts,crime and non-crime,this crime and other crimes need to be clarified.The first part of this paper is the legislative evolution of improper debt collection and the classification of debts.First of all,from the establishment of the crime of illegal detention of debt-claiming type to the increase of the crime of collecting illegal debts.It provides a better solution to the problem of improper debt collection crime caused by the rapid development of today's society and economy.Secondly,according to the nature and classification of debts in civil law,the collected debts are divided into legal debts,illegal debts and debts that are not protected by law,so as to better distinguish between crimes and non-crimes,this crime and that crime.The second part of this paper is a qualitative analysis of improper collection of "legitimate debts".This article denies the handling plan that most of the behaviors of improper collection of "legitimate debts" in judicial practice are classified as the crime of picking quarrels and provoking trouble.First of all,the act of improperly collecting "legal debts" was identified as the crime of picking quarrels and provoking trouble,which violated the principle of statutory crime and punishment.Secondly,improper collection of "legal debts" is an act of rights protection,and the perpetrator is only exercising his own rights and has no purpose of illegal possession of property.Finally,the act of improperly collecting "legitimate debts" does not infringe on legal interests,and according to the theory of "distinguishing legal interests by type",the act does not infringe on the legal interests protected by the "crime of picking quarrels and provoking trouble".Therefore,most improper collection of "legitimate debts" should not be considered a crime.Only a few extreme acts would constitute other criminal acts.The third part of this paper is a qualitative analysis of improper collection of "illegal debts".This section discusses two points of contention.First of all,the establishment of the "crime of collecting illegal debts" is based on the premise that the perpetrator's behavior reaches "serious circumstances".When determining guilt and innocence,judicial organs should closely focus on the behavior,frequency,duration,damage results and subjective malignant factors of the perpetrator.Secondly,this paper makes a distinction between the crime of collecting illegal debts and other related crimes.Among them,the main controversy lies in the differentiation and analysis of the "crime of collecting illegal debts" and the "crime of illegal detention of debt-claiming type".This part is mainly defined from three aspects: protection of legal interests,nature of debt,and degree of behavior.In addition,this section discusses the relationship between the crime of collecting illegal debts and other related property crimes and crimes of injury.The crime of collecting illegal debts is opposed to the crime of extortion and robbery.And clarify the nature of "excess debt" and "fictitious debt",as well as the charges involved in improper collection of these two "debts".When improperly collecting illegal debts,the perpetrator uses violence and coercion to cause more than minor injuries to others,and the crime of intentional injury and the crime of collecting illegal debts are established.On the premise of keeping the same behavior,the key to distinguish the crime of collecting illegal debts from the crime of picking quarrels and provoking trouble is the nature of the debts being collected.