催收非法债务罪的规范构造与司法适用

The Normative Structure and Judicial Application of the Crime of Collecting Illegal Debts

《刑法修正案(十一)》在寻衅滋事罪后新增独立轻罪催收非法债务罪以整治民间催收乱象,是积极预防性刑法观的体现,具有理论合理性与司法必要性。司法实务中存在扩张适用此罪的倾向,但并非任何涉及非法债务的不当催收行为都可以此罪兜底。此罪的保护法益为双重法益,重点仍在公共秩序,未侵害社会管理秩序的催收行为不应以此罪定罪。高利贷及与之具有等价性的赌债、毒债等非法债务为此罪的犯罪对象,借助被害人自险风险理论,对存在真实合意的非法债务进行催收的,一般可排除相关财产犯罪的构成。本罪的行为手段为“软暴力”催收行为,采取暴力、胁迫、非法拘禁等手段催收的,其手段不法程度应低于相关人身犯罪,但不排除在具体案件中会与相关罪名发生竞合关系。司法实践中应正确把握此罪的成立标准,善于运用想象竞合的原理,既要确保此罪的适用空间,也要防止其沦为新的口袋罪。

Amendment(XI) to the Criminal Law of the People’s Republic of China adds an independent misdemeanor crime of collecting illegal debts after the crime of picking quarrels and provoking trouble to rectify the chaos of private collection,which is the embodiment of the positive preventive criminal law concept, and has theoretical rationality and judicial necessity. There is a tendency to expand the application of this crime in judicial practice, but not any improper collection behavior involving illegal debts can be covered by this crime. The protection of legal interests of this crime is dual legal interests, and the focus is still on public order. Collection behaviors that do not violate social management order should not be convicted of this crime. Usury and its equivalent gambling debts, drug debts and other illegal debts are the targets of this crime. With the help of the victim’s self-insurance risk theory, the collection of illegal debts with real consent can generally be excluded from the composition of related property crimes. The act of this crime is "soft violence" collection behavior. If the collection is collected by means of violence, coercion, illegal detention, etc., the degree of illegality should be less than the relevant personal crime, but it does not rule out that in specific cases, there will be co-occurrence of related crimes. In judicial practice, we should correctly grasp the criteria for establishing this crime, be good at using the principle of co-existence of imagination, and not only ensure the applicable space of this crime, but also prevent it from becoming a new pocket crime.