催收非法债务罪研究

A Study on the Crime of Collecting Illegal Debts

催收非法债务罪是立法机关总结扫黑除恶专项斗争经验的产物。寻衅滋事罪、非法拘禁罪、非法侵入住宅罪等罪名是催收非法债务罪设立之前规制对此类行为的常用罪名。在《刑法修正案(十一)》增设催收非法债务罪之后,对于采取暴力、胁迫等不当手段催收由高利贷等产生的非法债务的行为原则上应认定为本罪,但不排除在具体案件事实中,本罪与其他相关犯罪仍然存在想象竞合关系,必须依照想象竞合犯的处断原则处理。2021年3月1日之前,根据行为时刑法的规定,如果行为人采取不当手段催收非法债务的行为并不符合寻衅滋事、非法拘禁或者非法侵入住宅等罪的构成要件时,根据从旧兼从轻原则,本罪不具有溯及既往的效力,应该认定为无罪;但如果根据行为时刑法的规定,可以认定为非法拘禁、非法侵入住宅等罪的,则应以本罪定罪处罚,本罪具有溯及既往的效力。

The crime of collecting illegal debts is the product of the experience the legislature gained in the special campaign against gang crimes,and it is also a legislative initiative to rectify the deviation in the campaign.The crimes of collecting illegal debts covers such previous crimes as picking quarrels and provoking trouble,illegal detention,and illegal invasion of residence.After the addition of the crime of collecting illegal debts in the criminal law amendment(XI),the behavior of collecting illegal debts by violence,coercion and other improper means can only be recognized as this crime,but it cannot be ruled out that there is still imaginative concurrence relationship between this crime and other related crimes in specific cases,which must be dealt with according to the principle of imaginative concurrence.Before the implementation of the crime of collecting illegal debts on March 1,2021,if someone adopts improper means to collect illegal debts and his behavior does not fit into any type of crimes based on the provisions in the criminal law at the time of action,he or she cannot be convicted according to the principle of combination of old and lighter punishment derived from the principle of legality.And the crime of collecting illegal debts has no retrospective effect.But according to the provisions in the criminal law at the time of the action,if the act can be convicted as a crime of provocation,illegal detention or illegal invasion of residence,then it should be convicted and punished as the crime of collecting illegal debts,and this crime has retrospective effect.