On The Determination Of "Illegal Debts" In The Crime Of Collecting Illegal Debts

In 2020,China added the crime of collecting illegal debts.Prior to this,there was widespread chaos in society in which illegal debts arising from illegal crimes were collected through violence,soft violence and other means.In judicial practice,because there is no more appropriate behavior to regulate,these illegal hoarding behaviors often fall under the category of picketing and trouble-making crimes.The crux of the matter is that with the increasing number of such illegal acts,the frequent use of the crime of picking quarrels and provoking trouble to carry out the investigation will inevitably violate the principle of proportionality of criminal responsibility and punishment in criminal law.Therefore,there is an urgent need for a misdemeanor that can better regulate these violent and soft violence and other illegal collection behaviors,and the crime of collecting illegal debts came into being in this context.Illegal debts are born in the context of anti-gang crime and evil,and naturally have a foundation of popular sentiment,which is prone to a situation where the blow is too wide.In theory,the object of this crime is the victim,and the object of the crime is illegal debt,which is the norm and limitation of the illegal acts to be combated by this crime.Therefore,it is important to clarify the scope of illegitimate debt and clarify the boundaries of illegitimate debt.By reviewing and understanding relevant Chinese and foreign literature and regulations,and combining relevant jurisprudence on the basis of the China Judgment Documents Network,it is of great practical significance to summarize the disputes about the identification of illegal debts in the crime of illegal debt collection and demonstrate them accordingly.First of all,on the issue of the normative premise of illegal debt,adhere to the mitigated monism of illegality,insist that the determination of illegal debt should be based on civil illegality and administrative illegality,and consider criminal illegality,and the two can neither be completely opposed nor completely equivalent.Therefore,the legal norms of civil,administrative and criminal departments can become the normative prerequisite for the determination of illegal debts.Secondly,in the judgment standard for the determination of illegal debt,the standard of the illegal nature of the debt itself is indeed more in line with the literal development of the concept of illegal debt,but considering the legislative intent of the crime of collecting illegal debt,the judgment standard of illegality of the act is more convincing.Taking the illegality of conduct as the primary criterion for determining illegal debts does not completely negate the role of the judgment standard of the illegal nature of the debt itself in the determination of illegal debts.In some debt relationships,although the underlying act of generating debt is illegal,the law still recognizes the relationship of part of the debt,and the judgment standard of the illegal nature of the debt itself has meaning.Finally,debts not protected by law are a larger category than illegitimate debts,which are only one part of debts not protected by law.In judicial practice,relevant judicial precedents focus on the field of usury and routine loans.On the specific issue of the determination of usury,although there are also relevant norms in the criminal field that give standards for the identification of usury,a comprehensive analysis of the characteristics of the constituent elements of the crime of collecting illegal debts-behavior mode,evaluation object,and normative protection purpose,takes four times LPR in the civil field as the standard for distinguishing legitimate principal and interest from interest that is not protected by law.And because the latest civil sector law lacks a standard for distinguishing between interest that is not protected by law and interest prohibited by law,the annual interest rate of 36% in the criminal field is used as the standard for distinguishing between the two.Therefore,for a usury,the part of the legal interest below four times LPR cannot be classified as illegal debt,and the part of the interest rate of four times LPR to 36%per annum that is not protected by law is difficult to be recognized as illegal debt,and only the interest rate above 36% per annum is prohibited by law and should be classified as illegal debt.On the issue of the specific identification of routine loans,it is necessary to clarify that the connotation of routine loans in the broadest sense in the simple cognition of the people only needs to conform to the formal characteristics of routine loans,that is,to conform to the behavior mode of routine loans,and does not need to meet the substantive characteristics of routine loans,that is,it requires illegal possession as the purpose.On the specific determination of routine loans,the key is to distinguish the basic creditor-debt relationship recognized by law under different behavior modes,so as to make substantive determinations with the help of usury recognition standards.Therefore,the criteria for determining illegitimate debt should be as follows.In this legal relationship,the degree of illegality should be limited to the violation of "administrative mandatory provisions",the "illegal" nature of debts arising from violations of the prohibitions of civil and administrative departments should be limited to the scope of "natural evil",and debts arising from violations of the legal norms of the criminal department should be included in the scope of illegal debts in the crime of collecting illegal debts.