过度维权与敲诈勒索罪的界分

发布时间：2018-03-02 03:28

本文关键词： 消费者维权过度维权敲诈勒索　出处：《天津师范大学》2017年硕士论文　论文类型：学位论文

【摘要】：近年来普法卓有成效,《消法》出台后消费者维权意识更加强烈,但是在消费领域却出现一种现象——消费者天价索赔。2006年大学生黄静向华硕公司天价索赔拉开了消费者过度维权涉敲诈勒索罪的序幕,2016年李海峰因四包方便面向今麦郎索赔300万后被以敲诈勒索罪定罪处罚,再一次引起社会各界的广泛关注,令人不禁深思,什么驱使权利人不顾法律的威严,以身犯险。到底此种行为是过度维权还是敲诈勒索,理论界和司法实践都尚有巨大争议,究其原因在于该行为涉及民法和刑法双重领域的模糊地带。在本文中层层剖析了什么是维权,什么是过度维权,什么是敲诈勒索,什么情况下过度维权会演变成敲诈勒索罪。通过国内外的研究进行归纳得出各国在认定时候考虑的因素可以归结为以下几点:一是是否存在正当的权利基础,二是在权利范围内行使权利,遵循主客观相统一的原则全面分析认定。通过研究国内司法认定方面的问题,归纳出争议焦点。最后具体分析主观的过度与敲诈勒索的界分,手段的过度与敲诈勒索的界分,权利主张的过度与敲诈勒索的界分,以此综合论证过度维权与敲诈勒索的界分。最后提出期望,消费者正确行使权力,引导社会风尚,理清法律模糊地带,刑法要时刻保持其谦抑性但又要维护法律尊严体现公平正义,慎重入刑。
[Abstract]:In recent years, law popularization has been fruitful, and consumers' awareness of safeguarding their rights has become stronger after the "Consumer Law" was introduced. However, in the field of consumption, there is a phenomenon-consumer price claims. On 2006, Huang Jing, a college student, started the prelude to the crime of extortion involving excessive rights protection by consumers against Asustek Corporation. On 2016, Li Haifeng came to this day because of four packets of instant noodles. After claiming 3 million, he was convicted of racketeering. Once again, it has aroused widespread concern from all walks of life in the society, which makes people wonder what drives the right holders to commit danger in disregard of the law. Whether this kind of behavior is excessive in safeguarding rights or extortion, there is great controversy in the theoretical circle and judicial practice. The reason lies in the fuzzy zone of the dual domain of civil law and criminal law. In this paper, we analyze what is rights protection, what is excessive rights protection, what is extortion, what is extortion. Under what circumstances excessive rights protection will evolve into the crime of extortion. Through research at home and abroad, we can conclude that the factors considered by countries in the determination can be summed up as follows: first, whether there is a legitimate right basis, The second is to exercise the right within the scope of the right, follow the principle of unity of subjectivity and objectivity. Through the study of domestic judicial issues, we can conclude the focus of the dispute. Finally, we will specifically analyze the division between subjective excess and extortion. The division between excessive means and extortion, and between claims and extortion, so as to prove comprehensively the boundary between excessive rights protection and extortion. Finally, the author puts forward the expectation that consumers can exercise their power correctly and guide the social fashion. In order to clear the fuzzy zone of law, criminal law should always maintain its modesty but also maintain the dignity of law to embody fairness and justice.
【学位授予单位】：天津师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3;D922.294

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