Research On The Identification Of Crime Of Collecting Illegal Debts

Before the official promulgation of the Criminal Law Amendment(11),the method of indirect regulation was mostly adopted for illegal debt collection with serious social harm in judicial practice,and could only be regulated by other crimes according to the different means of conduct,the more common ones were the crime of picking quarrels and provoking trouble,the crime of illegal detention,the crime of illegal invasion of residence,etc.,although this method can solve the situation that cannot be relied upon in reality,but it invisibly expands the scope of application of other crimes and is very easy to cause different judgments in the same case in judicial practice.The independent criminalization of the crime of collecting illegal debts not only solves conflicts in judicial practice and responds to social appeals,but also indirectly plays the positive guiding role of law on the people,further promoting the realization of good law and good governance.The determination of "illegal debt" in the crime of collecting illegal debts should meet three conditions: first,the core should be the formation of a clear and strict true agreement between the parties;Second,the performance of the debt is the payment of property and goods;Third,debts arise from ordinary violations of the prohibitions of the law and form a certain degree of equivalence with the granting of usury.It is worth noting that the illegal debt in this crime is different from the illegal debt in the general sense,and the evaluation scope is relatively narrower than that of the debt that is not protected by the law,which must not only meet the concept of illegal debt in the general sense,but also meet the above three conditions at the same time.In practice,the common illegal debts are mainly usury and gambling debts,and the determination of usury in this crime should be based on the standard of 36% per annum,and gambling debts only refer to debts arising from gambling that violate the prohibitions in the Public Security Administration Law.The illegal act of the perpetrator in the crime of collecting illegal debts is to form psychological suppression of the debtor and thus claim the debt,which is different from the same type of crime,which aims to violate the victim’s right to health,property right or privacy,and its means of behavior are more moderate.Among them,violent behavior only refers to the violence itself,does not include the coercion of future violence,and the means of violence can be both against people and objects;Compared with other crimes,coercive means are more moderate and coercive in content,as long as they can arouse the debtor’s fear and play a coercive role on the debtor’s psychology to achieve the purpose of the act;Restricting the personal freedom of others is different from depriving others of their personal freedom,and it interferes less with personal freedom,and requires the victim to realize that his personal freedom is restricted,which is not only limited to restricting others to a certain range of activities,but also restricting others’ free access to a certain place;The standard of fear in intimidation should be combined with the perception of the general public with the victim’s personal feelings,and the act of intimidation only needs to make others feel fear and thus form psychological coercion on the debtor,and does not require that the debtor himself feel fear;Tracking behavior should have the intention to make others feel frightened and uneasy,and have a certain continuity,repeatedly implemented over a period of time,tracking in a variety of ways,not limited to the actor’s own tracking,should include new types of technology tracking,such as remote monitoring,network tracking,etc.;The determination of harassment is similar to stalking,and shall aim to form psychological coercion on the victim,with continuous means and diverse content of harassment.The criteria for serious circumstances in this crime shall be comprehensively grasped in combination with the perpetrator’s means frequency,the target of the conduct,the occasion of the conduct,the outcome of the conduct,and other aspects.The crime of collecting illegal debts is essentially different from the crime of picking quarrels and provoking trouble because of its means of conduct and its unique purpose-debt collection,and should not be confused in judicial practice;There is an intersecting relationship with the crime of illegal detention,and in judicial practice,the principle of imaginary competition and cooperation can be adopted to deal with it;There is an obvious inclusive relationship with the collection of illegal debts by intruding into other people’s homes,and the two meet the formal and substantive requirements of competing legal provisions,and the crime of collecting illegal debts should be determined in accordance with the principle that special laws prevail over general laws.The key to the distinction between the crime of debt collection and the determination of other crimes lies in two points,the subjective purpose of the perpetrator’s act and the degree of infringement of the victim’s legal interests by illegal means.