催收非法债务罪中非法债务的认定

Recognition of Illegal Debt in the Crime of Collecting Illegal Debt

《刑法修正案(十一)》新增设了催收非法债务罪,认定本罪的非法债务,不能简单地理解为高利放贷产生的非法债务和法律不予保护的债务,而是要基于法秩序的统一性,从催收的行为方式、与财产犯罪的关系来对本罪所规定的非法债务范围予以限制,具体来说,本文认为催收因高利放贷等产生的非法债务,是指催收高利放贷等非法行为产生的高利贷本金和行为人可以行使权利的“相对违法债务”;此外,赌债、赌资、毒资、嫖资等不法行为产生的债务不属于本罪所规制的非法债务。本罪不是索债型非法拘禁和寻衅滋事罪在催收非法债务领域的替代罪名,对司法实践中认定催收非法债务行为的乱象必须摒弃。

The Eleventh Amendment to the Criminal Law has added the crime of collecting illegal debts, and the determination of illegal debts in this crime cannot be simply understood as illegal debts generated by high interest lending and debts not protected by law. Instead, based on the unity of legal order, the scope of illegal debts stipulated in this crime should be limited from the behavior of collection and the relationship with property crimes. Specifically, this article believes that the collection of illegal debts arising from high-interest lending refers to the collection of the principal of high-interest loans and the “relatively illegal debts” that the perpetrator can exercise their rights through illegal activities such as high-interest lending;In addition, debts arising from illegal activities such as gambling debts, gambling funds, drug funds, and prostitution are not illegal debts regulated by this crime. This crime is not a substitute charge for the crime of illegal detention and provocation in the field of debt collection, and the chaos of identifying illegal debt collection behavior in judicial practice must be abandoned.