On The Determination Of The Execution Behavior Of The Crime Of Forced Trading

In 1997,the Criminal Law established the crime of forced trading,which mainly includes forced buying and selling of goods,and forcing others to provide or receive services.The Criminal Law Amendment(VIII)issued in 2011 made significant modifications to the crime of forced trading,adding three new types of trading behavior and increasing the statutory penalty.With the development of society,the behavior of forced transactions has increased in practice,and new types have emerged,such as forced exit transactions,forced lending,and criminal organization using soft violence to force transactions.The provisions of the current legislation and judicial interpretation on forced transactions cannot meet the requirements of the new form of forced transactions,which leads to the disunity of the criteria for the determination of this crime,and confusion between crime and non crime,this crime and that crime.The identification of the implementation behavior of the crime of forced trading has strong practical and theoretical significance.The crime of forced trading belongs to the category of compound offense,and its behavior can be divided into means behavior and purpose behavior,and there should be a causal relationship between means behavior and purpose behavior.The coercive behavior of the crime of forced trading specifically includes violence and threats,and the objects of violence and threats not only include the trading counterpart,but also include third parties other than the trading counterpart.The implementation time of coercive behavior should be limited before the end of the transaction.For the controversial issue of the degree of violence and threat in academia,the upper limit of the degree of violence should not be limited by the "minor injury theory" or "serious injury theory".The degree of threat should be determined based on a comprehensive subjective and objective theory.The connotation of this crime’s trading behavior should be defined from three aspects: the legality of the trading behavior,marketability,and the requirements for price restrictions.Non market trading,illegal trading,and excessive profit trading do not belong to the scope of this crime’s trading.For specific trading behaviors stipulated by law,counterfeit and shoddy goods cannot be excluded from the scope of this crime.Forced lending behavior should belong to the crime of forcing others to provide or accept services.Online judicial auctions should be recognized as "auctions" of this crime,and "specific business activities" should be interpreted with homogeneity with the other four types of forced trading behaviors.In terms of determining the circumstances,"serious circumstances" and "particularly serious circumstances" are respectively regarded as the circumstances of the crime and the circumstances of sentencing,and the determination should comprehensively consider objective factors such as the amount of crime,the number of crimes committed,and the harmful consequences.