The Predicament Of Judicial Identification And Its Solution On The Crime Of Collecting Illegal Debts

In the private lending market,Creditors of illegal debts collect debts on illegal means themselves or entrust a third party,which not only infringes on the legitimate rights and interests of debtors,but also undermines the order of civil lending.For this reason,the crime named collecting illegal debts was adopted in the Criminal Law Amendment(Eleventh)adds.The setting of this crime provides a strong legal support for actively cracking down such illegal actions in judicial practice in the future.However,there are still some problems in the determination of this crime,which have led to different judgments to the same case in judicial practice.Based on this,combined with the court judgments on such cases,the dissertation is specifically divided into four parts following.The first part introduces the current situation of judicial practice of the crime of collecting illegal debts,and summarizes three judicial recognition dilemmas of this crime based on the views of scholars: how to identify the collection behavior,the illegal debt and the serious circumstances.The second part mainly analyzes the legal basis of the crime of collecting illegal debts which is carried out with three aspects: the protection of legal interests,the legislative purpose,and its criminal law function and value.The legislative purposes of this crime include accurately cracking down on illegal collection,filling punishment loopholes,solving the problem of confusion about the crime of collecting illegal debts,and regulating the order of civil lending;The criminal law functions and values of this crime are respectively to ensure that the crime is commensurate with the punishment,maintain financial order,and to realize the educational guidance function of the criminal law.The third part analyzes and summarizes the experience and enlightenments of extraterritorial legal systems in regulating debt collections.The civil law system,represented by Japan and Germany,and the common law system,represented by the United Kingdom and the United States,summed up two enlightenments: clarify the subject and object of improper collections and restriction of collections.The fourth part proposes solutions to the predicaments of the crime.First,by specifically analyzing the three collection behaviors described in the crime and correctly distinguishing collection behaviors from other crimes,and listing and introducing typical cases and the subjects and objects that restrict collection behaviors to clarify improper collection behaviors;Secondly,setting the criteria for determining illegal debt by comparing and distinguishing illegal debt from debt not protected by law,and to clarifying the scope of illegal debt.Finally,it is necessary to clarify the connotation and nature of serious circumstances and use multiple methods to define serious circumstances.