Standards for filing crimes of violent debt collection
Private lending refers to financing activities between natural persons, legal entities and unincorporated organizations. In recent years, criminal cases arising from private lending have emerged one after another, the most typical of which is violent debt collection. As the saying goes, "It is natural to pay back debts," but debt collection must be done in legal ways. If violence and other illegal means are used to demand remuneration and thus bear criminal liability, it can be said that "stealing chickens but losing rice" means the gains outweigh the losses.
1. What is "violent debt collection"
First of all, we must clarify what "violent debt collection" is. "Violence" in criminal law is not limited to ordinary people's common sense. Tangible physical forces act directly on the human body, causing injury, disability, and death. With the increased protection of personal rights, "soft violence" has also been included in the scope of criminal law. According to the definition of relevant documents, "soft violence" refers to illegal and criminal methods such as harassment, entanglement, making trouble, and gathering crowds to build momentum. Seeking illegal benefits or influencing others is enough to cause fear and panic in others, thereby forming psychological coercion, or affecting or restricting personal freedom, endangering personal and property safety, and affecting normal life, work, production, and business operations.
Therefore, we should note that the targets of "soft violence" are no longer limited to the human body. Generally speaking, according to different objects, the most common forms of "soft violence" in practice can be divided into three categories:
(1) Targeting personal rights, democratic rights, and property rights: such as stalking, threatening Spreading diseases, exposing privacy, malicious reporting, false accusations, destruction, misappropriation of property, etc.
(2) Taking the normal order of life, work, production and business as the object of infringement: such as illegally invading other people's homes, destroying living facilities, setting up obstacles to life, posting newspaper spray-painting, hanging banners, setting off firecrackers, Play sad music, place wreaths, throw dirt, cut off water and electricity, block doors and stop work, and directly or indirectly control factories, office areas and business premises by expelling employees and assigning guards.
(3) Taking social order as the object of infringement: such as posing for demonstrations, gathering people to cause nuisance, blocking roads, causing troubles, etc.
Therefore, in addition to the use of tangible force that directly acts on the human body to collect debts, violent debt collection behavior also includes the aforementioned "soft violence" debt collection. In recent years, the violent debt collection behavior regulated by criminal law mainly uses the aforementioned "soft violence" to collect debts. "soft violence".
2. Crimes that may involve violent debt collection
It should be noted that there is no crime of "violent debt collection" in the criminal law. What is directly regulated is the use of violent means to collect debts. Before the implementation of the Eleventh Amendment to the Criminal Law, violent debt collection in practice often involved the crimes of provocation, intentional injury, illegal detention, extortion and even robbery. After the implementation of the "Criminal Law Amendment (Eleven)", violent debt collection may directly constitute the crime of illegal debt collection. Generally speaking, the most direct regulation of violent debt collection by criminal law is the crime of provocation and illegal debt collection. These two crimes are highlighted below.
3. Violent debt collection may constitute the crime of provocation and its filing standards.
According to the provisions of Article 293 of the "Criminal Law", whoever extorts or arbitrarily damages or appropriates public or private property, if the circumstances are serious and disrupts social order, may be guilty of the crime of provocation and be sentenced to a fixed-term imprisonment of not more than five years. Imprisonment, criminal detention or control; whoever commits the aforementioned acts multiple times and seriously disrupts social order shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and may also be fined.
Before the introduction of the crime of illegal debt collection, violent debt collection was often regarded as "grabbing public and private property". Subject to the aforementioned provisions, the maximum statutory penalty could be up to ten years. It is important to note that the difference between this crime and the crime of illegal debt collection is that its scope is not limited to "illegal debt collection."
In other words, th
(1) Forcibly demanding public or private property worth more than 1,000 yuan, or arbitrarily damaging or misappropriating public or private property worth more than 2,000 yuan;
(2) More than Extortion or arbitrary damage or misappropriation of public or private property, causing adverse social impact; The property of adults has caused adverse social impact;
(4) Caused serious consequences such as mental disorder and suicide of others;
(5) Seriously affected the work, life and production of others Business;
(6) Other serious circumstances.
The above four standards are clear, and the last two are general rules. Generally, according to the strict identification style in my country's judicial practice, violent debt collection is often easily identified as "serious circumstances."
4. Violent debt collection may constitute illegal debt collection and its filing standards.
According to Article 293-1 of the "Criminal Law": If violence, coercion, restriction of personal freedom of others, intrusion into other people's homes, intimidation, stalking, harassment, etc. are used to illegally collect debts for high-interest loans, and the circumstances are serious, The offender shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or solely be fined.
After the implementation of the "Criminal Law Amendment (Eleven)", violent extortion of illegal debts such as loan sharking is mainly regulated by this crime. This crime has certain requirements for criminal subjects, namely special subjects such as high-interest lenders and professional lenders. So when do "loan sharks" and "professional moneylenders" generally form?
(1) Usury lenders: According to relevant regulations, the interest rate of private loans shall not exceed 4 times the one-year LPR when the contract is established, so entities that lend at an interest rate 4 times higher than the one-year LPR Can constitute a "usury lender";
(2) Professional lender: According to relevant regulations, for the purpose of profit, regularly issue loans to unspecified objects in the society, that is, professional lending; among them, "regularly provide loans to the society "Loan disbursement to unspecified objects" refers to the disbursement of funds to unspecified objects (including units and individuals) more than 10 times within 2 years in the name of loans or other names.
5. Defense points caused by the change of charges.
Based on the above, violent debt collection behavior can be determined as the crime of picking quarrels and provoking troubles or the crime of violently demanding illegal debts. The crime of picking quarrels and provoking troubles also includes violent debt collection situations. Previous convictions
The maximum statutory penalty is 10 years, while the maximum statutory penalty for the latter crime is 3 years. The same behavior, found to be the aforementioned different crimes, may result in large differences in the penalties imposed.
The Eleventh Amendment to the Criminal Law will be implemented on March 1, 2021. According to the criminal law’s legal application principle of “old and lenient”, if the new legal provisions are more beneficial to the perpetrator at trial, , the legal provisions at the time of trial shall apply. Then, if the perpetrator commits violent collection of illegal debts on March 1, 2021, but during the trial after that, the crime of collection of illegal debts rather than the crime of provoking trouble should be applied. Cases that arise in practice include Wu Hancheng’s case of illegal detention, extortion, and picking quarrels and provoking trouble. In the first instance, the actor Wu Hancheng's illegal debt collection behavior was found to be the crime of picking quarrels and provoking troubles and sentenced to 6 years in prison. In the second instance, the verdict was changed and he was classified as the crime of collecting illegal debts and sentenced to 2 years and 10 months in prison. The huge difference is evident.
Therefore, as a creditor, the means of debt collection must be reasonable and legal to avoid being thrown into jail if the debt collection fails. As a defender, you must understand the evolution and changes in the application of relevant laws and regulations to better protect the client's legitimate rights and interests. Related Q&A: Related Q&A: Are debt collection agencies legal?
Debt collection companies are illegal
“Currently, in our country, most people know about debt collection companies, but few people know that debt collection companies are illegal.” Prosecutor Qiao Ping Ping said that since ancient times, "repaying debts" has been considered a natural thing by the Chinese. However, sometimes due to reasons such as the debtor's whereabouts are unknown or deliberately evading debts, creditors have difficulty in recovering their debts on their own and seek help from the court. Facing the problems of high cost, long cycle and difficult execution, debt collection companies have a viable market.
"According to conservative estimates by industry insiders, at least 100,000 people across the country are currently engaged in this shady debt collection profession, and "more than 1 million people may be engaged in this highly profitable profession in the future." These are based on "consulting" and "investigation" Companies established in the name are actually debt collection companies whose business is "debt collection". They often use long-term tracking, seizing valuables, making threats, etc. Some even use violent means to recover debts, and even cause casualties. , leading to multiple people fighting and other criminal crimes.
The state should ban debt collection companies
“The state should ban debt collection companies and provide legal support for creditors. "Prosecutor Sun Lingyan said that there are three legitimate ways to resolve debt disputes: first, the parties involved negotiate to resolve it themselves; second, legal workers intervene and resolve it through non-litigation; third, resolve it through arbitration and litigation. The emergence of debt collection companies, It has impacted the formal legal service market. Most of the operating activities of debt collection companies are abnormal and irregular, which may cause various problems and undermine the normal legal order.
At the same time, the court should step up its efforts. The criminal sanctions against “Lao Lai” are strong. “At present, the judicial authorities have relatively strict sanctions against violent debt collection, but the criminal liability of ‘Lao Lai’ is not strong enough. "The increase in violent debt collection has exposed the lack of integrity in our country. Some debtors refuse to pay back the money and transfer their property to prevent the court from executing it. However, in practice, "laodai" who receive legal punishment for "refusing to execute judgments and rulings" Not a lot. Therefore, the judicial authorities need to increase criminal penalties for such rogue behavior, which will not only help improve the integrity of the entire society, but also reduce the excessive behavior caused by failed debt collection.
2006 4 In September, the China Employment Training Technical Guidance Center of the Ministry of Labor and Social Security listed commercial debt collection specialists as a newly released profession. Commercial debt collection specialists are responsible for the relevant legal regulations on commercial debt collection, internal corporate account management, and non-litigation practical operations. Methods, psychological characteristics diagnosis of debtors, etc. will be systematically studied, and professional and legal collection services will be used to help enterprises recover their "accounts receivable" in a timely manner. It is hoped that this system will mature as soon as possible and allow more creditors to benefit. .
To sum up, the existence of debt collection companies not only disrupts the normal production, work and life order of enterprises, institutions and citizens, and endangers social security, but also encourages underground illegal debt collection activities and causes negative consequences in society. Impact. The country has issued prohibitions on various types of debt collection companies three times, prohibiting any organization or individual from opening any form of debt collection company. Therefore, I hope the above content can help you. , it is better to collect debt through legal channels through professional lawyers
Debt collection companies expose many social problems
“Debt collection companies expose many social problems. "The judge said that firstly, the legal awareness is weak. On the one hand, the debtor unilaterally believes that debt is only a moral issue and does not violate the law, so he hides in Tibet to evade the debt, and even uses deception to default on the debt, causing the creditor's inner conflict. Continuously escalating; on the other hand, creditors mistakenly believe that "paying back debts" is a natural and natural thing. They feel that no matter what method they use as long as they can get the debtors to pay back the money, they will not be responsible for their losses. Therefore, they turn to debt collection companies when their demands are unsuccessful. This fundamental awareness It is also an illegal and criminal act to collect legitimate debts by illegal means.
The second is to make huge profits. Generally, the remuneration fee charged by the debt collection company is 20 to 30% of the debt, and even if the debt is collected. If it fails, the creditor will be asked to pay a certain amount of labor fees, and the creditor will not dare to refuse to pay. Therefore, driven by a high proportion of profit returns, debt collection companies continue to do so, and some people are willing to risk criminal penalties.
Third, there is a lack of effective legal remedies for claims and debts. Debtors have been avoiding, defaulting on, and defaulting on debts for a long time. Creditors cannot find timely, legal and effective legal ways to protect their rights when they are unable to realize their claims. Entering the judicial process, the operation cycle is long, and it is easy for the debtor to transfer assets. On the premise of spending a certain amount of litigation costs, it may also end due to failure to execute, which discourages creditors.
In desperation, creditors will choose debt collection companies that require less investment, quick results, and guaranteed results.
Fourth is the lack of a confidentiality mechanism for citizens’ personal privacy. Sometimes creditors cannot find the debtor, but debt collection companies can accurately find and control the debtor. This is because citizens' personal privacy information is disclosed to criminals indiscriminately, which is also a side factor that allows debt collection companies to successfully complete their "business."
The fifth is the lack of integrity system. Our country has not yet established a personal integrity file. If a debtor does not repay the money he owes, it will not be recorded, and it will not have a particularly big impact on his future study, life, work, production and operation, etc. This makes the debtor default on arrears or even The social cost of denying debts in every possible way is very low, thus emboldening these debtors with bad credit.
Debt collection companies often cause criminal offenses
Lawyers told reporters that the procedures for debt collection companies usually include: finding the debtor - locking the scope of the debtor's activities - controlling the debtor - collecting debts from the debtor Obtain a debt - the debtor is forced to pay back the money - and receive an agreed fee from the creditor. The success of debt collection companies relies on two methods: psychological threats and physical threats. Under normal circumstances, debt collection companies mostly use physical threats to collect debts, and physical threats can easily trigger criminal offenses. Judging from the debt collection gangs that have been found to have committed crimes, debt collection companies have the following characteristics to trigger criminal offenses.
The composition of debt collection personnel is complicated. The member structure of debt collection companies is relatively complex, and they are mostly composed of unemployed people or people who have been released from prison. Debt collection methods were made illegal. After members of the debt collection company sign an entrustment agreement with the creditor, they use means such as long-term tracking, seizure of valuables, and phone threats. Some even use violence or threats to force the parties to repay the debt. In short, they "will use all kinds of methods to achieve their goals" illegal means". Obtain illegal profits and plunder. For debtors, members of debt collection companies usually resort to unfair means such as bullying, verbal threats, or even violence; for creditors who entrust them, if they fail to recover debts successfully or do not receive corresponding commissions, they will create clever names to pay for investigation fees. , travel expenses, etc. to ask for money. The debt collection process can involve a variety of criminal offenses. Members of debt collection companies often deliberately stir up trouble in the name of debt collection. The illegal acts they use violent means may violate a variety of crimes: for example, they have an argument with the debtor during the debt collection process and then gather people to fight with the debtor, which is suspected of mass affray; or they go to the debtor's company to cause wanton trouble and disrupt the normal production and operation order. Suspected of the crime of picking quarrels and provoking trouble; some others, because they did not collect the debt and could not get "remuneration" from the client, turned to extort "labor fees" from the debtor, suspected of the crime of extortion; during the process of asking for the debt, the debtor refused, Those who intentionally harm the debtor's body in retaliation due to dissatisfaction are suspected of intentional injury; those who illegally control the debtor's personal freedom for a long time in order to force the debtor to repay the debt as soon as possible are suspected of illegal detention.