| With the rapid development of market economy and the popularization of legal system education,continuously increasing awareness of citizen safeguarding their rights,which makes our country frequent phenomenon of excessive rights protection.After their rights are damaged,because the means of litigation are time-consuming and laborious,most rights holders recover their legal rights by means of private remedy.For example,in the negotiation,the rights defender often proposes high compensation.In order to increase the bargaining chips,the rights defender tells the merchant that if the compensation request is not met,it will be exposed to the media.As a result,the rights protection act is like extortion.The above phenomenon is because there are disputes over whether excessive rights protection is coercive or whether high claims have the purpose of illegal possession,which leads to the phenomenon of "different sentences in the same case",which not only affects the authority and credibility of the judiciary,but also is not conducive to the protection of human rights.This paper thinks that,under the background of the rapid development of market economy in our country,more should operate under the clear rules of excessive rights protection activities "across the board" into the crime,not conducive to the harmony and stability of the society,should be the concrete problem of the concrete analysis,this paper is divided into three chapters:The fifrst Chapter,Firstly the author defines the excessive rights protection behavior based on scholars’ views,and draws out the characteristics of excessive rights protection behavior: excessive,excessive and causative.Secondly it expounds the types and causes of excessive rights protection.According to the three types of behavior,it puts forward the reasons for the unclear definition of excessive rights protection and extortion crime.Finally it defines the crime of extortion and analyzes its constituent elements.The second chapter firstly combs the identification theory of extortion crime in excessive rights protection,and then lists three typical cases,"Guo Li extortion case","Li Haifeng rights protection case" and "Huang Jing Asus Computer case".Secondly,on the basis of sorting out three typical judicial cases,it is found that the judgment standards of whether excessive rights protection acts constitute the crime of extortion and extortion are not uniform in judicial practice,and there are phenomena of "different sentences in the same case" and "different sentences in the type of cases".Four focal points of dispute are summarized: first,whether the huge claim has the purpose of illegal possession;Second,whether the basis for consumer rights protection is legitimate;Third,whether the repeated claim has the purpose of illegal possession;Fourth,whether consumers’ exposure to the media is coercive.The third chapter,Firstly,it analyzes the subjective and objective elements of the crime of extortion,and expounds its own views on four controversial issues in the theory: first,when the consumer has the right basis,there is no equivalence between the consumer’s huge claim to the merchant and the purpose of illegal possession;In repeated claims,after the first rights protection has been compensated,the basis of rights protection is lost,and repeated claims with the same damage fact are considered to have the purpose of illegal possession,except in the case that the merchant actively compensates or actively negotiates with the consumer on compensation.Secondly,the rights defenders have a legitimate basis for safeguarding their rights,and the behavior of exposing a huge amount of property to the media does not belong to the coercive behavior in the crime of extortion.Thirdly,it holds that the for-profit professional anti-counterfeiting organizations,which have no consumer identity,carry out rights protection behavior constitutes the crime of extortion.The content of consumers’ coercive behavior has no connection with the content of rights protection.If consumers take coercive means to protect their rights,it constitutes the crime of extortion.Secondly,according to the above problems,three suggestions are put forward: first,consumers should treat the right appeal correctly;Second,it is suggested to introduce the judicial interpretation of extortion in the nature of excessive rights protection,including conviction and sentencing,to refine the undefined determiners such as "amount" and "circumstances",and strictly limit the discretion of judicial personnel.Third,uphold the principle of modesty and restraint in criminal law. |
