The crime of collecting illegal debts is one of the misdemeanors added in the 11th Amendment to the Criminal Law. It is a representative crime of criminal law intervening in social governance. The crime of collecting illegal debts is accurately defined in accordance with the legi

The crime of collecting illegal debts is one of the misdemeanors added in the 11th Amendment to the Criminal Law. It is a representative crime of criminal law intervening in social governance-

Accurately define the crime of collecting illegal debts in accordance with the legislative purpose

Liu Yanhong

The crime of collecting illegal debts is a criminal law Amendment (11) adds one of the misdemeanors with a maximum penalty of up to three years in prison. This crime was already included in the "draft" when it was first publicly solicited for opinions in June 2020. Regardless of whether it is attributed to the positive view of criminal law, the crime of collecting illegal debts is undoubtedly a representative crime of criminal law intervening in social governance.

The legislative purpose of the crime of collecting illegal debts

As for the legislative purpose of this crime, it was pointed out in the "Explanation on the Amendment to the Criminal Law of the People's Republic of China (Eleven) (Draft)" (hereinafter referred to as the "Draft Explanation"): "For To further prevent and resolve financial risks, ensure financial reform, maintain financial order, and protect the interests of the people, it is planned to further improve the relevant provisions of the criminal law:... Third, severely punish illegal debt collection behaviors. Summarizing the practical experience of the special struggle against gangs and evil, we will It is a crime to use violence, 'soft violence' and other means to collect debts arising from loan sharking and other debts not protected by law, and make this a career." It can be seen that this crime is a derivative crime of loan sharking and other related financial crimes. The motivation for the legislation is to summarize the criminal judicial experience in combating gang-related crimes since the Central Committee of the Communist Party of China and the State Council issued the "Notice on Carrying out Special Struggles against Gangs and Elimination of Evil" in January 2018. For example, Article 17 of the "Guidance on Several Issues Concerning the Handling of Criminal Cases by Underworld Forces" issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice (hereinafter referred to as the "Two High Schools and Two Ministries") stipulates that "for extortion of persons who are not protected by law" "Debts or for other illegal purposes", hiring or instigating others to use nuisance, entanglement and other means to provoke quarrels and troubles in an organized manner constitutes the crime of picking quarrels and provoking troubles; at the same time, in the section "Cracking down on criminal activities of illegal lending and debt collection in accordance with the law" it is stipulated that "the use of debt collection companies "Debt collection through "underground law enforcement teams" and other methods can also constitute a crime of a mafia nature.

The above-mentioned guiding opinions have basically established the direction of judicial response to illegal debt collection in the "Crackdown on Gangs and Elimination of Evil" operations. Since then, the "Two Highs and Two Ministries" "Opinions on Several Issues Concerning the Handling of Criminal Cases Carrying out "Soft Violence"" and "On "Opinions on Several Issues Concerning the Handling of Criminal Cases of Illegal Loans" and "Opinions on Several Issues Concerning the Handling of Criminal Cases of "Routine Loans"" both deal with the forced extortion of "debts arising from illegal lending", "debts not protected by law" and "routine loans". Behaviors such as "using both soft and hard tactics to collect debts" are classified as the crimes of picking quarrels and provoking trouble, illegal detention, illegal intrusion into residences, and extortion. In other words, if the behavior of collecting illegal debts is different and the content of the infringement of legal interests is different, the applicable crimes will also be different. The infringement of legal interests specifically includes social management order, personal freedom, residential tranquility, property rights, etc. After three years of emergency justice against the collection of illegal debts, the Criminal Law Amendment (11) added an independent crime of collection of illegal debts, providing a legal basis for the realization of normalized justice in legislation. The crime of collecting illegal debts requires three types of behaviors to collect illegal debts: "using violence or coercion", "restricting the personal freedom of others or invading other people's homes" and "intimidating, stalking, and harassing others". It can be seen from the constituent elements of this crime that What is still infringed is personal freedom, residential tranquility, social and public order and other legal interests; as far as the first object of collection is "debts arising from loan sharking", this crime of course also indirectly involves the legal interests of financial order in the "Draft Explanation". This crime is also a secondary harm crime of financial crime. The establishment of this crime is in line with the policy spirit of "comprehensive management" and "joint efforts and joint management". Therefore, according to the original intention of the legislation and the methods of historical interpretation and purpose interpretation, the legal interests protected by the crime of collecting illegal debts can be summarized in doctrinal terms as citizens’ personal peace of life and social and public order.The legislative purpose of this crime is to use special charges to undertake illegal debt collection activities involving picking quarrels and provoking troubles, illegal detention, and illegal intrusion into residences. It aims to tighten the standards of crime and punishment to eliminate the problem of excessive sentencing caused by the application of the crime of picking quarrels and provoking troubles and other crimes. It does not constitute loopholes in the criminal law caused by other crimes.

Principles of conviction for the crime of collection of illegal debts

In addition to examining the purpose of legislation, the interpretation and application of new crimes must abide by the meaning of the criminal law. Limited by legislative techniques, the provisions of the criminal law may help achieve the purpose, or may deviate from the purpose. Therefore, the principle of legality of crime and punishment has become the first principle of conviction. The additions of the Criminal Law Amendment (11), such as the crime of collecting illegal debts, the crime of throwing objects from high altitude, and the crime of obstructing safe driving, are all aimed at further realizing the crime and punishment from the "express provisions of the criminal law". legal. According to Article 293-1 of the Criminal Law, the crime of collecting illegal debts includes three basic elements: a type of collection object, a third type of collection behavior, and a crime factor.

First, an explanation of the collection objects of this crime. The "illegal debt" in the crime is "illegal debt arising from loan sharking, etc." The explanation of this element includes two issues. First, what is "loan sharking"? There are different identification standards for "loan sharking" in criminal law and civil law. For example, the "Opinions on Several Issues Concerning the Handling of Criminal Cases of Illegal Lending" of the "Two Highs and Two Ministries" defines illegal lending as an actual annual interest rate exceeding 36%. The Supreme Court The "Regulations on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases" provides that the legally protected interest rate for private lending is 4 times the loan market quotation rate. In view of the different regulatory scopes of the above-mentioned criminal and civil judicial documents, "usury lending" in criminal law should be limited to an actual annual interest rate exceeding 36%. This not only respects the pre-positioning of interest rates protected by the law on private lending, does not violate the unity of civil and criminal law, but also avoids the expansion of the scope of criminal law, and takes into account the consistency of the internal system of criminal law. What's more, the Criminal Law Amendment (11) discards the expression "debts not protected by law" determined in the first and second drafts of the "Draft". The criminal law standard for "usury" is higher than the civil judicial interpretation on the civil law. The protected private lending interest rate standards are also in line with the literal meaning of the criminal law. Second, what is “illegal debt incurred by others”? Since the word "waiting" in this crime is preceded only by "usury", the scope of "waiting" here can only be "waiting outside" and cannot be "waiting within", otherwise the word "waiting" would be redundant. However, it is not all "debts not protected by law", but should be understood as "debts" arising from illegal reasons, that is, "debts" arising from administrative violations or criminal acts, not simply "debts not protected by civil law" debt. The crime of collecting illegal debts is a crime arising from the special operation of "cracking down on gangs and eliminating evil". Debts arising from gambling, drug-related and other illegal and criminal activities that easily breed gangster forces can be recognized as "illegal debts".

Second, regarding the explanation of the behavioral elements of this crime. The legal interests violated by the crime of collecting illegal debts are the peace of life of citizens and social and public order. After the addition of this crime, the use of the above three types of methods to collect illegal debts will no longer be recognized as the crime of picking quarrels and provoking trouble, the crime of illegal detention, and the crime of illegal intrusion into a residence. Otherwise, there is no need to add this crime. In other words, this crime is a specialization of the above three crimes in collecting illegal debts. First of all, "violence" in the first item refers to personal injury, which is consistent with the meaning of "beating" in Article 293 of the Criminal Law; "coercion" is a threatening method intended to cause the victim to panic, which is consistent with the meaning of "intimidation" in the third item. Consistent, that is, "coercion" is included in "intimidation". Secondly, "restricting others' personal freedom" has the same meaning as "illegally detaining others or illegally depriving others of their personal freedom by other methods" in Article 238 of the Criminal Law. "Restriction" and "deprivation" have no difference in the quality of infringement of the legal rights and interests of personal freedom. What a big difference; and "intrusion into another person's residence" and "illegal intrusion into another person's residence" in Article 245 of the Criminal Law should also be understood in the same way.Finally, the "intimidation" in "intimidating, stalking, and harassing others" refers to the "intimidation" of the crime of picking quarrels and provoking troubles; and "stalking and harassment" includes both the "chasing, intercepting, and insulting" of the crime of picking quarrels and provoking troubles, as well as the "chasing, intercepting, and insulting" crimes that have never been included in the criminal law. Other stalking and harassment behaviors within the scope are essentially intrusions on the tranquility of personal life and public order.

Third, the explanation of the “serious circumstances” of this crime. The elements of "plot" were respectively placed in specific behaviors in the "first review draft": the original second item "restricting others' personal freedom or invading other people's homes, the circumstances are minor" and the original third item "intimidating, stalking, and harassing others" , the circumstances are serious." The "Second Review Draft" and the "Final Draft" mentioned "serious circumstances" as the overall evaluation factor of this crime before mentioning the three acts. The reason for this is that each behavior has not yet reached the "serious social harm" required by the criminal law and requires additional evaluation thresholds. Therefore, "serious circumstances" are essentially factors that enhance objective illegality, and subjective factors such as "received criminal punishment or administrative punishment" that indicate personal danger and the need for prevention should be avoided into the scope of "serious circumstances." Since the legal interests of the crime of collecting illegal debts are consistent with the crime of picking quarrels and provoking troubles, and the three types of collection behaviors are intersecting with the crime of picking quarrels and provoking troubles, this crime is a new crime separated from the crime of picking quarrels and provoking troubles, targeting "violence, coercion" and "intimidation". For the "serious circumstances" of the crime of picking quarrels and provoking troubles, "beating others at will, with egregious circumstances" and "chasing, intercepting, insulting, and intimidating others with egregious circumstances" can be referred to. For the determination of "serious circumstances" of "restricting the personal freedom of others" and "invading other people's homes", you can refer to the provisions of Articles 6 and 7 of the "Opinions on Several Issues Concerning the Handling of Criminal Cases Carrying out "Soft Violence"", and this article The principal and maximum penalty of the crime are also exactly the same as those of the basic crime of illegal detention and the crime of illegal intrusion into a residence. Therefore, applying the case filing and prosecution standards with reference to the latter two is also consistent with the principle of balance between crime and punishment.

Judicial application of the crime of collecting illegal debts

The crime of collecting illegal debts is a new misdemeanor. In judicial application, attention should also be paid to the relationship between the number of crimes and the retroactivity of criminal law. Specifically:

First of all, this crime is "the crime of collecting illegal debts" rather than "the crime of illegally collecting debts". Therefore, using the same behavior as stipulated in Article 293-1 to collect "legitimate debts" will not be regarded as this crime, and more "Raising heights" cannot be considered a crime of provoking trouble.

Secondly, this crime is a crime of collecting illegal debts by means of provoking trouble, illegal detention, and illegal intrusion into residences. Combining the above-mentioned behavioral elements of this crime, the compound legal interests of personal life and public order, and the establishment of the highest legal penalty, the crime of collecting illegal debts, the crime of picking quarrels and provoking trouble, the crime of illegal detention (basic crime), and the crime of illegal intrusion into a residence are the (cross-cutting) laws of the crime. Relationship, if the three types of behaviors specified in Article 293-1 of the Criminal Law are used to collect illegal debts arising from loan sharking, etc., if the circumstances are serious, they will be directly punished as this crime and will no longer be recognized as the above three crimes. Otherwise, it will defeat the purpose of legislation and lead to confusion in conviction. This crime is the product of practical experience in the special struggle of "cracking down crime and eradicating evil". It is an integration of legal application opinions on multiple criminal judicial documents. That is, an act of collection may originally violate the crime of provoking trouble, illegal detention, and illegal intrusion into a residence. Several crimes, but after the addition of this crime, the behaviors corresponding to the above three crimes were transferred to the crime of collecting illegal debts.

Again, if the act of collecting illegal debts simultaneously violates this crime and property crimes such as extortion and robbery, it should be treated as a felony. The application of felony property crimes cannot be excluded because "there is a cause". The legal interests infringed by the crime of collecting illegal debts are personal life peace and public order, excluding property legal interests. This determines that the completion standard of this crime can only be the degree of harm to the above-mentioned personal legal interests and social order legal interests. Amendment (11) to the Criminal Law deletes "Those who commit the acts in the preceding paragraph and also constitute other crimes shall be convicted and punished in accordance with the provisions of heavier penalties" in order to adjust the relationship between this crime and the crime of picking quarrels and provoking trouble, the crime of illegal detention, and the crime of illegal intrusion into a residence. , rather than the relationship between this crime and all other crimes.Just like collecting illegal debts and intentionally causing serious injury or intentional homicide, the crime has exceeded the constituent elements of this crime and the infringement of legal interests. Of course, the more serious crimes of intentional injury and intentional homicide must be applied. The collection of illegal debts and the "purpose of illegal possession" are not mutually exclusive. If "violence", "coercion" and "intimidation" reach the level of infringement of legal interests of the crime of extortion and robbery and illegally possess other people's property, it constitutes the crime of extortion and robbery. Can be convicted and punished in accordance with the provisions of heavier penalties.

Finally, there is an obvious relationship between the severity of penalties for the crime of collecting illegal debts and the crime of picking quarrels and provoking troubles, and the principle of leniency and leniency stipulated in Article 12 of the Criminal Law applies. This crime is a special crime that replaces the crime of picking quarrels and provoking troubles in the field of collecting illegal debts. The collection of illegal debts before the Criminal Law Amendment (11) takes effect constitutes the crime of picking quarrels and provoking troubles. After the Criminal Law Amendment (11) takes effect, During the trial, the misdemeanor crime of collecting illegal debts should be chosen. It is precisely based on this relationship that if the same collection behavior does not constitute this crime, after the Criminal Law Amendment (11) comes into effect, it can no longer be "returned" or "raised" and determined as the crime of picking quarrels and provoking trouble.

　 (The author is dean and professor of the School of Criminal Justice, China University of Political Science and Law)

Source: Procuratorate Daily