权利行使与敲诈勒索罪的区分

The Distinction between the Exercise of Rights and the Crime of Extortion

摘要: 我国司法机关对于敲诈勒索罪的认定拥有较大的自由裁量权，同案异判屡见不鲜。对于消费者的过度维权行为，究竟是行使权利还是敲诈勒索，刑法理论界亦争论不止。结合我国刑法犯罪构成理论，本文将从敲诈勒索罪的构成要件为切入点对权利行使与敲诈勒索作出区分。单独从敲诈勒索罪的保护法益或客观行为方面进行考察都无法将其与权利行使作出区分，笔者认为对行为人非法占有目的的判断是区分二者的关键，其中维权依据与财产损害为较好的切入点，在行为人不具有法定权利，或者其行权依据超出“社会相当性”，且行为人最终获得了远超正当债权的赔偿时，应当认定其具有非法占有的目的，若其行为同时符合其他构成要件的，应当认定其敲诈勒索罪的成立。

Abstract: The judicial organs of our country have a large discretionary power to identify the crime of extortion, and the same case and different judgment are often seen. As for the excessive rights protection of consumers, whether it is the exercise of power or extortion, the criminal law theory circle is also debated. Combining with the constitution theory of criminal law of our country, this article will distinguish the exercise of rights and extortion from the constitutive elements of extortion. It is impossible to distinguish the crime of extortion from the exercise of rights by examining its protection law interests or objective acts alone. The author believes that the judgment on the purpose of the perpetrator’s illegal possession is the key to distinguish the two, in which the basis for safeguarding rights and property damage are the better starting points, and the perpetrator does not have legal rights, or its basis for exercising power exceeds “social equivalence”. When the perpetrator finally obtains the compensation far beyond the legitimate creditor’s rights, it should be determined that it has the purpose of illegal possession, and if its behavior meets other constitutive requirements at the same time, it should be determined that its crime of extortion is established.