催收非法债务罪的规范构造展开

The Standard Construction Expansion of the Crime of Collecting Illegal Debts

摘要: 对于采用暴力、软暴力手段催收非法债务的行为通常认定为法定最高刑为五年的寻衅滋事罪的现象，理论与审判实务围绕是否符合构成要件、是否罪刑相适应存在争论。《刑法修正案(十一)》增设催收非法债务罪，解决了将该类行为认定为寻衅滋事罪量刑畸重的问题。根据本罪的刑法定位和增设背景，本罪的保护法益包括秩序法益和人身法益。债务与手段的双重非法性是是否成立本罪的关键，应从本罪的双重保护法益出发，对非法债务的范围进行限制性解释，注重债务的反伦理道德属性，避免将单纯违反民事法律不违反社会常理的债务纳入规制范围；根据本罪的最高法定刑为三年以下的设置合理划定四类具体构成要件行为达到“情节严重”的判断标准，妥当处理本罪与类似罪名的关系。

Abstract: With regard to the phenomenon that the act of collecting illegal debts by means of vio-lence or soft violence is generally recognized as the crime of picking quarrels and provoking trou-bles with the maximum penalty of five years by law, there are disputes between theory and trial practice about whether it conforms to the constitutive requirements and whether the crime and punishment are compatible. Amendment 11 to the Criminal Law adds illegal collection, and the debt crime has solved the problem of excessively heavy sentencing for identifying such behavior as a crime of provoking and causing trouble. According to the positioning and background of the crim-inal law of this crime, the benefit of the protection law of this crime includes the interest of the or-der law and the interest of the person law. The illegality of debt and means is the key to the estab-lishment of this crime. We should start from the double protection benefits of this crime, limit the scope of illegal debt, pay attention to the anti-ethics of debt, avoid the debt that simply violates the civil law into the scope of regulation. According to the setting of the legal punishment of this crime, it is reasonable to delimit four types of specific constituent elements to reach the standard of “seri-ous circumstances”, and properly deal with the relationship between this crime and similar charg-es.