Research On The Criminal Law Regulation Of Extortion By Legal Means

The general theory of criminal law in our country holds that the crime of extortion is constituted by threats.Based on this,the act of extortion by legal means constitutes the crime of extortion in principle.However,this view overly expands the scope of punishment when faces the cases such as “excessive rights protection”,which goes against the public sentiment.In this regard,there have been a lot of studies on how to decriminalize “excessive rights protection” in the academic world,but most of these studies have shortcomings.Therefore,it is necessary to explore whether the act of extortion by legal means constitutes the crime of extortion.The first chapter is an overview of extortion by legal means.First of all,this paper defines the act of extortion by legal means as: the perpetrator informs the opposite party that he will perform a legal act,and proposes to deliver the property in exchange for not carrying out the legal act,the opposite party chooses to deliver the property based on the fear of legal behavior,the perpetrator or the third party acquire the property.Secondly,in order to define the legal means,this paper focuses on the problem of whether it is legal to expose negative information of others,and points out that the legality of exposure should be judged according to whether the exposure violates the right of privacy.Thirdly,this article divides extortion into three types according to whether the perpetrator has the right to claim property.Extortion with a full rights base does not constitute extortion in the first place.Extortion with partial rights bases and no rights bases are homogeneous and may constitutes the crime of extortion.The second chapter is the introduction and analysis of the relevant theories on whether extortion by legal means constitutes the crime of extortion.In the view of this paper,the existing theories about criminalization and decriminalization have many flaws.The defects of the criminalization theory are mainly manifested in: Firstly,it excessively expands the scope of “threat” and “suppression of free will” in the crime of extortion;Secondly,it excessively emphasizes the influence of perpetrator’s subjective mentality on conviction.The biggest problem of the decriminalization theory is that it only discusses how “excessive rights protection” should be decriminalized,while ignoring other homogeneous acts of extortion by legal means.The third chapter is the analysis on whether the extortion by legal means constitutes a crime.Firstly,single act of extortion and most repeated extortion do not constitute the crime of extortion.The reasons are as follows: On the one hand,because the implementation of a legal act is not a “harm”,and the act of extortion by legal means is an offer,the act of extortion by legal means lacks the “threat”,which constitutes an element of the crime of extortion.The reason why the implementation of a legal act is not a “harm” is that: if it is regarded as a “harm”,harsh transactions that cannot constitute a crime in practice will constitute the crime of extortion.The reason why extortion by legal means is considered as an offer is that: the unfavorable consequence of not accepting the extortion is the normal development of the event.On the other hand,extortion by legal means did not reduce the victim’s willingness to the level of invalidate the consent,which can be confirmed from the “Civil Code” provisions on obvious unfairness.Secondly,only the repeated extortion by exercising disposable rights constitutes the crime of extortion.This is because in this repeated extortion,the perpetrator has lost his legal rights.Actually,this extortion is an extortion by illegal means.The fourth chapter is the perfection of the criminal law regulation of extortion by legal means.Firstly,none of the theories about the “blackmail paradox” in AngloAmerican law system can be used as a basis for criminalize extortion by legal means.Utilitarianism that defends the interests of society or others,immoral theories that place victims in a dilemma,and theories of exploitation based on legal moralism and legal paternalism are all flawed.This paper advocates that the crime of intimidation should be added to the criminal law,which based on the strong fear caused by repeated extortion by exercising indisposable rights,to regulate repeated extortion by exercising indisposable rights with serious circumstances.