On The “Illegal Debt” In The Crime Of Collection Of Illegal Debt

In order to effectively regulate the high incidence of violent collection of illegal debts in social life,the Criminal Law Amendment(XI)introduced the offence of collection of illegal debts on the basis of the experience gained from the special struggle against blackmail and evil.However,due to the lack of relevant judicial interpretation,the connotation and extension of "illegal debt" is unclear,making the crime of collecting illegal debts a risk of being reduced to a pocket crime.Therefore,the scope of "illegal debts" in the offence of collection of illegal debts should be reasonably defined in accordance with the principle of modesty of criminal law.The term “debt not protected by law” was used in the relevant judicial interpretations before the promulgation of Criminal Law Amendment(XI)and in the deliberation draft of Criminal Law Amendment(XI)in the field of regulation of violent debt collection.The legal expression of the crime of collecting illegal debts replaces "debts not protected by law" with "illegal debts",which can peep into the criminal law’s intention to limit the scope of the crime of collecting illegal debts.Looking at the cases that have been closed since the introduction of the crime of collecting illegal debts,there is an inappropriate expansion of the understanding of illegal debts.To sum up the current views on how to reasonably define the connotation and extension of illegal debt in this crime,there are mainly two types.First,determine the scope of illegal debts in combination with legal interests;In essence,the above two viewpoints are not contradictory.On the contrary,the scope of illegal debts in the crime of collecting illegal debts can be defined by combining the two viewpoints.Illegal debt is a combination of the two concepts "illegal" and "debt".From the perspective of the illegal level of illegal debts,it should be avoided to simply understand all debts that violate civil law,administrative law,and criminal law as illegal debts in the crime of collecting illegal debts.The illegality of illegal debt should also be interpreted as the illegality of the act of debt generation,rather than the illegality of the content of the debt itself.Based on the legislative motivation of punishing the underworld forces for the crime of collecting illegal debts,the illegality of illegal debts should also be interpreted narrowly on the basis of the homogeneity of the activities of the underworld forces.Illegal debt,as debt itself,has the same debt nature as legal debt except legality.Summarize the basic nature of illegal debts as debts based on usury: the creation of illegal debts is premised on the true agreement between the parties,illegal debts exclude natural debts,and illegal debts are only based on financial payments.The offence of collection of unlawful debts is defined in the law as "unlawful debts arising from usury,etc.",so the ren di of "usury" and "etc." is crucial to the understanding of unlawful debts.In accordance with the legislative idea of making the offence of collecting illegal debts strict but not severe,the usurious lending in the offence of collecting illegal debts should be restricted to business usurious lending.The debt arising from usurious lending should be subject to the double standard of interest rate and social harm.In particular,the interest rate standard of 36% per annum is consistent with the rules of interpretation for the offence of collection of unlawful debts under a positive criminal law view.The word "etc." should be interpreted in strict accordance with the rules of interpretation of the word "etc." in criminal law,in terms of both like-kind interpretation and purposive interpretation,using usury as a typical example.Gambling debts,which are common in judicial practice,have the same degree of anti-sociality as usury and fall under the category of "illegal debts" within the offence of collection of illegal debts.The identification of gambling debts should be interpreted in a strictly substantive manner,emphasising,on the one hand,the socially harmful standard of gambling behaviour and excluding debts arising from the general recreational activities of social life.On the other hand,debts incurred as a result of fraudulent acts under the guise of gambling shall not be considered as gambling debts.As a means of fraud,the perpetrator has the subjective purpose of unlawful appropriation of the debt arising from the loan,and has a property legal benefit infringement,which should be recognized as a property crime such as robbery and racketeering.