| Since the reform and opening-up,China’s market economy has developed rapidly,and market economic activities have gradually increased.The problem of forced trading in market trading activities has gradually become prominent,mainly in tourism,beauty and construction industries.Forced trading has had some adverse effects on market order and destroyed the principles of fairness,freedom and equality in market order.The crime of forced trading was established by the criminal law of1997.At the initial stage of its establishment,its behavior mainly included forced buying and selling of products and forcing others to buy their own products and accept services.The main goal of this crime is to ensure the fairness and freedom of market order and ensure that the legitimate rights and interests of trading subjects will not be infringed.With the development of China’s economy,the trading content has gradually diversified,which has brought challenges to the market trading order.To a certain extent,forced trading has surged,and gradually changed to a diversified development trend.Bullying,buying and selling have increased,and the harm has also continued to expand,which has brought certain difficulties to the judicial determination of forced trading crime.Therefore,the formulation and promulgation of the Amendment Ⅷ to the Criminal Law in 2011 integrated and improved the crime of forced trading,added three types of trading modes,increased the statutory punishment of the crime of forced trading,and further expanded the behavior mode and type.However,at the present stage,due to the confusion and fuzziness of the identification of the crime of forced trading,and because the discussion of the crime of forced trading in the criminal law is relatively simple and simplified,there are also certain deficiencies in judicial interpretation,resulting in the problem of wrong application of law in judicial practice.In this regard,this paper discusses the main difficulties faced by the crime of forced trading in judicial practice and the focus of disputes in cases.From the perspective of the objective level of the crime of forced trading,it discusses the identification of the means of action of the crime of forced trading,and divides it from the objective constituent elements of other criminal acts,providing theoretical guidance for the analysis and identification of the difficulties faced by the crime of forced trading in judicial practice.The content of this paper is divided into four parts: the first part mainly gives examples of relevant cases,and discusses the judgment of cases and the focus of disputes;The second part expounds the judicial identification of "coercion" in the crime of forced trading,and discusses it from two aspects: sorting out and evaluating the views of "coercion" in the theoretical circle and the identification of "coercion";The third part is about the judicial identification of "transaction" in the crime of forced transaction,which is discussed from two aspects: sorting out and evaluating the views of the theoretical circle on "transaction" and the identification of "transaction";The fourth part discusses the judicial determination of "especially serious circumstances" in the crime of forced trading.It is hoped that the research in this paper can enrich the theoretical research on the judicial determination of the crime of forced trading. |
