An Empirical Study On The Distinction Between Excessive Rights Protection And Extortion

With the rapid development of the economy and society,the citizens awareness of their rights has also been increasing,but the phenomenon of excessive defense of rights often occurs in practice.As China adopts the expression of a simple crime to provide for the crime of extortion,it makes the judicial organs have great discretionary power.Although this gives the judiciary greater power of interpretation,so that the practice of extortion and blackmail behavior can mostly be covered by this crime,but also lead to the crime is misused,abuse of the phenomenon.Whether or not the act of excessive maintenance of rights constitutes the crime of extortion,trial practice and theoretical research are widely divergent.In the future,China will continue to move forward and new disputes will be generated between citizens,and the study of the definition of excessive rights defense behavior and extortion crime is of great practical significance.The study of the phenomenon of excessive rights defense behavior should be combined with judicial practice to have a relatively comprehensive understanding of the nature and causes of excessive rights defense behavior.The controversial focus of the crime of extortion in judicial practice mainly revolves around two aspects of subjective purpose and objective behavior behavior.The hypothetical justification of the right to defend,the objective content of the right to dispute for excessive claims and the end of the right to claim again is the focus of controversy in terms of subjective purpose,to the media exposure,petition and prosecution of illegal and criminal behavior is the focus of controversy in terms of objective behavior.For these controversial points,there are different theoretical doctrines,and judicial practice does not fully follow a certain doctrine for trial.As for the demarcation between excessive rights defense and extortion,the amount of the claim should not be used as a criterion for judging the subjective purpose.If the perpetrator can prove the reasonableness of the amount claimed,even if the claim is beyond the scope of authority,it should not be found to have the purpose of illegal possession.If the perpetrator cannot reasonably prove it,he or she can bear the adverse consequences.For the determination of the act of defending the right,whether the means of defending the right is socially equivalent is the key element of conviction.Although the definition standard of social equivalence is not clear,but with the development of judicial practice,its specificity standard will gradually present.Since foreign countries have gone through several stages for the determination of excessive rights defense behavior,this thesis draws on the foreign mode of dealing with excessive rights defense based on the combination of China’s national conditions.Criminal law,as the last safeguard,can only be deployed in situations that cannot be regulated by other laws.For the excessive rights defense behavior which is originally under the jurisdiction of civil law,it is necessary to maintain the modesty of criminal law and be cautious to incriminate,however,in practice there are indeed people who ignore the law,this thesis argues that not only should the rights and interests of the defenders be legally protected,but also need to achieve the legalization of crime and punishment and the consistency of crime and punishment.