On The Judicial Application Of The Crime Of Collecting Illegal Debts

With the rapid development of social economy,the private lending market is becoming more and more active.However,the lack of supervision gives rise to a large number of illegal loans,which are accompanied by illegal collection behavior.Violent collection is one of the key targets in the special fight against gang-related crimes.In judicial practice,illegal debt collection behaviors are generally divided into relatively independent sub-behaviors,and then the compliance of constitutive elements of sub-behaviors is judged,and traditional crimes such as crime of creating disturbances,crime of illegal detention,crime of intentional injury are punished.Although such recourse to traditional charges has cracked down on illegal debt collection to some extent,regulating such acts without special charges often leads to loopholes in criminal punishment.In order to effectively regulate illegal debt collection behavior,the Criminal Law Amendment(11)added the crime of illegal debt collection to fill the legislative gap.There are some problems in the judicial application of the crime of collecting illegal debts,such as unclear protected legal interest,lack of limits on the scope of illegal debts and confusion in the identification of charges.The disputes about the protected legal interest mainly focus on public order and personal rights.The unclear definition of the scope of illegal debt lies in the different identification standards of usury,the dispute over the nature of "routine loan" and the excessive scope of gambling debt.The reason for the confusion in identifying the crime lies in the fuzziness of the three behavior modes enumerated in the crime.Based on the systematic analysis of the above problems,the following conclusions can be drawn: First,the protected legal interest of the crime of collecting illegal debts should be limited to personal rights,excluding property rights and public order;Second,the illegal debt in this crime is essentially generated based on illegal reasons,with mutually agreed effect of incomplete debt,among which usury should take 4 times LPR as the identification standard,collection of debt exceeding the annual interest rate standard of 36% may be suspected of property crime;The property payment relationship caused by illegal possession crimes such as "routine loan" and gambling fraud does not belong to the category of debt,and should be treated as property crime;Thirdly,the two dimensions of collection behavior and debt nature should be considered comprehensively,and the illegal collection behavior should be dealt with in a typed manner: the behavior of collecting legal debts by illegal means is not property crime and the crime of creating disturbances,but a crime of infringement of personal rights can be established when the degree of means behavior is serious;The act of collecting relatively illegal debts by illegal means shall be established as the crime of collecting illegal debts.If the degree of the means is serious,the crime of collecting illegal debts shall be established as the overlap of articles of law with the crime of intentional injury,the crime of illegal detention and other crimes of violating personal rights;The act of collecting absolutely illegal debts by illegal means constitutes the imaginative joiner of offenses between the crime of collecting illegal debts and the crime of robbery,the crime of extortion,the crime of gathering people to rob and other property crimes,which should be punished as a felony.