Research On Judicial Determination Of The Crime Of Collecting Illegal Debt

In order to effectively regulate the violent and soft-violent collection of illegal debts such as loan sharks and gambling debts,which are repeatedly prohibited in social life,the Amendment(XI)to the Criminal Law established the offence of collection of illegal debts.The establishment of this crime not only fills the legislative gap in the criminal law field for "soft violence" debt collection,but also provides solid legal support for actively combating violent collection of illegal debts in future judicial practice and providing reasonable differentiation in the application of the crime.In this article,the problems of the offence of collecting illegal debts in judicial practice and some of the issues that are still controversial in theory are studied in the context of the legislation on the offence of collecting illegal debts,in conjunction with the judgments published on the Judicial Documents website on the application of the offence of collecting illegal debts.The purpose of the legislation is to combat violence and soft-violence in the collection of debts,which causes social disorder in society.The illegal debt in this offence should be interpreted restrictively because of the description "usurious lending etc." in the law.Illegal debts have the appearance of legal debts in form,but the creditor loses the right of action because they are created and agreed upon in violation of legal prohibitions.The standard of usurious interest in this offence is a cross-cutting issue between criminal and civil law.According to the legislative purpose of this crime and judicial practice,this crime is regulated between the perpetrators of illegal debt contractual behavior,in essence,belongs to a kind of private lending,and the civil law in the regulation of the protection of the object of the same.The interest rate of usury is in line with the civil law for the sake of unity of law and order,and the four times LPR is equally applicable.The status of the creditordebtor in this legal relationship is not equal.The debtor’s status in this legal relationship is not equal to that of the creditor-debtor.Therefore,the act of "lending" with the purpose of illegal possession should be excluded from the illegal debt of this crime.With regard to the determination of the means of conduct for this offence,the acts of violence,restriction of personal freedom and intrusion into another person’s home enumerated in the law are partly in competition with other offences in the Criminal Law sub-rules,but there are also major differences.The degree of violence and coercion in this offence should be strictly controlled and needs to be clearly distinguished from the crime of violence against the person.In relation to acts of restriction of personal freedom,a clear distinction should be drawn between the means of restriction and the duration of restriction and the "deprivation" of personal freedom in the offence of unlawful detention.In the case of soft violence,it should be made clear that the core of such acts is the psychological coercion and influence on the debtor,with the aim of recovering the illegal debt.The "aggravating circumstances",as a constituent element of this crime,can be evaluated in practice according to the extent of the means of the act,the frequency of the act,whether the object of the act is a vulnerable group,and the degree of disturbance to public order.Because of the diversity of means of conduct in this offence,a strict distinction between this offence and other offences that may be involved is of great significance to the correct understanding of the application of this offence.Firstly,the offence was created to exclude the application of the offence of provocation and nuisance,and is therefore in an antagonistic and exclusive relationship with the offence of provocation and nuisance.Secondly,this offence is similar to the offence of unlawful detention in terms of behaviour,but there are major differences.This crime is lighter than the crime of unlawful detention in terms of sentencing,and the criteria for determining misdemeanours should be applied.After the actor’s conduct reaches the criteria for establishing the crime of unlawful detention,it is transformed into the crime of unlawful detention,and the crime of unlawful detention cannot be excluded by using the act of detention as a means of collection.Finally,there is no possibility of competition between this offence and the offence of prior cause extortion.The reason for this is that the basis of the prior cause extortion is a tort,not an illegal debt based on the consent of both parties,and this is the key to distinguishing between the two acts.