催收非法债务罪之“非法债务”认定

On the Determination of “Illegal Debt” in the Crime of Collecting Illegal Debts

摘要: 催收非法债务罪中“非法债务”的认定需从“债务性”与“非法性”两方面入手。债务性上，本罪的“债务”外延应大于财产犯罪的“债务”外延，无需具备合意性，仅需具备形式债务外观。非法性上，本罪债务的违法性根据是创设债务行为的不法和债务内容本身的不法；债务内容的违法性层次划分首先应根据债务所违反的前置法类型，初步将债务分为刑事、行政与民事违法债务三类，前两类当然满足本罪债务的“非法性”，而民事违法债务的“非法性”则需依据“道德权利理论”进一步评估，仅当其具备强烈悖德性时，才可构成本罪的“非法债务”。

Abstract: The determination of “illegal debt” in the crime of collecting illegal debts needs to be analyzed from the “debt” and “illegality” of debts. In terms of debt, the extension of the debt of this crime should be greater than the extension of the debt of property crime. The illegal debt of this crime does not need to be consensual, as long as it has a debt form on the surface. In terms of illegality, the illegality of the debt of this crime is based on the illegality of creating the debt behavior and the illegality of the debt itself. The division of the illegality level of the debt content should first be based on the different types of debt violation of the pre-law, and the debt should be initially divided into three categories: criminal, administrative and civil illegal debt. The first two categories of course satisfy the illegality of the debt of this crime, while the illegality of the civil illegal debt needs to be further evaluated according to the moral rights theory. Only when it has a strong anti-virtue can it constitute the “illegal debt” of this crime.