A Study On Exercising Creditors’ Right Improperly

Having failed to exercise the right of claim,the “self-help” type of getting legal,valid,overdue payment of debt refers to directly seizing debtors’ property,or using symbolic violence to force debtors to pay,resulting in debtors’ property loss,which is similar to “repossession”.Whether this kind of conduct constitutes a property crime has still been in dispute,since there has been no coherent judgement,no matter in domestic or foreign jurisprudences.However,the majority hold that this conduct cannot be regarded as a crime,considering that its essence is exercising the right of creditors.And there are mainly two ways to judge the conduct in question: one is to figure out whether it satisfy offense elements of a property crime,another one is to find out whether it is not only facially criminal,but also wrongful.However,the methods put forward before are partly unreasonable,or partly illogical.The direct reason is the different interpretations on the offense elements of property crime,such as the illegal intention,the property loss,the wrongfulness(Rechtswidrigkeit)in the context of criminal law.But the original reason is the different standpoints on understanding the relationship between civil law and criminal law.This paper takes the position that Neutral Wrongfulness Monism hold legitimacy,which on the one hand allows different protection of property under different regime and emphasizes characteristics of the protection under criminal law on the other hand.Therefore,this position is an inevitable result of insisting a uniform legal system and distinguishing the degree of wrongfulness.The degree of wrongfulness is the core of dealing with the conduct of exercising creditor’s right improperly.On the condition that this conduct is facially criminal,to deny its substantive illegality is the last method.Furthermore,it is necessary to use a behavioral model to test the certain degree from perspectives of “quality” and “quantity”.If the degree of wrongfulness is finally denied through the test,the conduct of exercising creditor’s right improperly can be justified by criminal law.