A Doctrinal Study On The Crime Of Collecting Illegal Debts

Before the promulgation of the judicial interpretation of the criminal law,the illegal collection appeared in the form of judicial interpretation.Therefore,the criminal law amendment(11)passed on December 26,2020 newly established the crime of collecting illegal debts.It can be seen that the amendment of the criminal law clearly stipulates the collection of illegal debts as a criminal act and impose criminal punishment.The punishment of illegal debt collection is a highlight of the revision of the criminal law,which makes up for the legal gap and increases the criminal cost of illegal debt collection.According to the position of the crime of collecting illegal debt in the specific provisions of the criminal law,the legal interest protected by the crime of collecting illegal debt is social public order,but social public order,as a collective legal interest,is a very abstract concept.The understanding of this collective legal interest should be based on the individual legal interest,and the specific legal interest protected by the crime of collecting illegal debt can be determined in connection with the specific behavior types stipulated in article 293-1 of the criminal law.Specifically,the legal interests protected by "violence and coercion" are the right to life and health of individuals,"restricting others’ personal freedom or invading others’ houses" protect personal freedom or residential security,"intimidation,tracking and harassment" protect personal rights such as personal reputation,privacy and human dignity.Of course,the understanding of each specific legal interest must be analyzed in connection with the requirements of social public order.The key to understanding the crime of collecting illegal debts lies in the understanding of "illegal debts".Although one of article 293 of the criminal law only stipulates that usury is an illegal debt,the scope of illegal debts can be expanded according to the principle of similar interpretation.Similarly,gambling debts and debts arising from prostitution that are not protected by law can be included.Collection behavior can be summarized as "hard violence" and "soft violence".Among them,"soft violence" is the key target of China’s "anti underworld and evil" activities.However,the "soft violence" in collection behavior is obviously different from the "soft violence" used by underworld and evil forces.The constitutive requirement of "serious circumstances" is highly abstract.In order to better implement the principle of legality,the judicial organ can make a comprehensive judgment in combination with the subjective malignancy of the perpetrator,the risk degree of the behavior itself and the consequences caused by the behavior.The subjective form of the crime of collecting illegal debt is intentional,so we need to clearly recognize that what we collect is illegal debt,which is not easy to judge,because there are many similarities between illegal debt and legal debt in form.This crime does not have the purpose of illegal possession subjectively,and the "routine loan" can be excluded from the illegal debt.According to judicial practice,although there is a single crime in the case of illegal debt collection,joint crime is the main form of the crime of illegal debt collection.Influenced by the struggle against "black and evil",Gangland Organizations and evil criminal groups are common criminal organization in illegal cases.The crime of collecting illegal debts and related crimes coincide with each other.Specifically,the crime of collecting illegal debt may compete with the crime of intentional injury,the crime of illegal detention and the crime of illegal intrusion into housing.Although this crime is different from the crime of provocation in the purpose,object and consequences of behavior,they still have the possibility of concurrence.The key to distinguish the crime of collecting illegal debt from the crime of robbery and the crime of extortion lies in the purpose of illegal possession.According to the different purposes of illegal possession,illegal debt can be divided into relative illegal debt and absolute illegal debt.In the case of collecting relatively illegal debts,even if the perpetrator uses violence and coercion to the extent of robbery or extortion,it does not constitute robbery or extortion;In the case of collecting absolutely illegal debt,the perpetrator’s use of violence and coercion reaches the degree of robbery or extortion,which can constitute robbery or extortion,but does not constitute the crime of collecting illegal debt.