敲诈勒索行为问题研究
发布时间：2018-11-06 07:54
【摘要】：敲诈勒索行为是一种常见的侵犯财产型犯罪行为,刑法中对敲诈勒索罪的规定较为简单,司法实务中又有许多犯罪行为与其相似,敲诈勒索行为极易与其他犯罪行为,如抢劫行为、诈骗行为、索贿型的受贿行为等相混淆,且与合法行使权力的行为及其他并非刑法调整范围内的行为易混淆。因此,有必要对敲诈勒索行为进行明确界定,确定其包含的要素,与类似行为相区分,为司法实务提供明确的依据。在中国法律发展史上,惩处敲诈勒索行为的规定自古有之,通过对我国古代立法及当今域外一些国家立法的比较,研究我国敲诈勒索行为的逻辑构造威胁、要挟行为—→对方恐惧—→处分财产—→财产损害,进而对四个构成要素进行梳理和分析,并探究其中存在的一些问题。通过对敲诈勒索行为与正当行使权利行为、知假买假行为等非刑法调整范围内一些行为的界定,以及敲诈勒索行为与抢劫行为、诈骗行为等类似犯罪行为的区分,进一步明确敲诈勒索行为的基本结构、各要素的准确含义。我国刑法对敲诈勒索罪的规定采用简单罪状的方式,造成理论界的分歧和争议,同时也给司法实务中的运用带来困难和混乱,理论和司法实务中存在诸如公私财物是否包括财产性利益等问题的争议,不利于司法机关运用该规定有效打击敲诈勒索犯罪行为,维护社会和谐与稳定。针对敲诈勒索罪立法上的不完善,需要通过刑法修正案,不断做出调整和完善,针对法律规定的缺陷和不足,出台相关司法解释,更好地指导司法实务中法律的适用,避免出现定罪量刑的混乱现象。
[Abstract]:Extortion is a kind of common crime of infringing property. The regulation of extortion is relatively simple in criminal law. There are many criminal acts similar to extortion in judicial practice. Extortion is easy to be compared with other criminal acts. Such as robbery, fraud, bribery, and so on, and with the legitimate exercise of power and other acts outside the scope of criminal law is easy to be confused. Therefore, it is necessary to define the racketeering behavior clearly, determine the elements it contains, distinguish it from similar acts, and provide a clear basis for judicial practice. In the history of the development of Chinese law, the provisions of punishing racketeering have existed since ancient times. By comparing the ancient legislation of our country with that of some foreign countries, this paper studies the logical structure threat of extortion in our country. Threatening behavior-fear of the other side-disposition of property-property damage, and then comb and analyze the four elements, and explore some problems. Through the definition of some acts within the scope of non-criminal adjustment, such as extortion and legitimate exercise of rights, and the distinction between extortion and robbery, fraud and other similar criminal acts. Further clarify the basic structure of racketeering, the exact meaning of each element. The crime of extortion in criminal law of our country adopts the way of simple crime, which causes the differences and disputes in the theoretical circle, and also brings difficulties and confusion to the application of the judicial practice. There are disputes in theory and judicial practice, such as whether the public and private property include property interests, which is not conducive to the judicial organs to effectively crack down on the crime of extortion and maintain social harmony and stability. In view of the imperfection of the legislation of the crime of extortion, we need to constantly adjust and perfect it through the amendment of the criminal law. In order to better guide the application of the law in the judicial practice, we should introduce the relevant judicial interpretation in view of the defects and deficiencies of the legal provisions. Avoid the confusion of conviction and sentencing.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.35
本文编号：2313634
[Abstract]:Extortion is a kind of common crime of infringing property. The regulation of extortion is relatively simple in criminal law. There are many criminal acts similar to extortion in judicial practice. Extortion is easy to be compared with other criminal acts. Such as robbery, fraud, bribery, and so on, and with the legitimate exercise of power and other acts outside the scope of criminal law is easy to be confused. Therefore, it is necessary to define the racketeering behavior clearly, determine the elements it contains, distinguish it from similar acts, and provide a clear basis for judicial practice. In the history of the development of Chinese law, the provisions of punishing racketeering have existed since ancient times. By comparing the ancient legislation of our country with that of some foreign countries, this paper studies the logical structure threat of extortion in our country. Threatening behavior-fear of the other side-disposition of property-property damage, and then comb and analyze the four elements, and explore some problems. Through the definition of some acts within the scope of non-criminal adjustment, such as extortion and legitimate exercise of rights, and the distinction between extortion and robbery, fraud and other similar criminal acts. Further clarify the basic structure of racketeering, the exact meaning of each element. The crime of extortion in criminal law of our country adopts the way of simple crime, which causes the differences and disputes in the theoretical circle, and also brings difficulties and confusion to the application of the judicial practice. There are disputes in theory and judicial practice, such as whether the public and private property include property interests, which is not conducive to the judicial organs to effectively crack down on the crime of extortion and maintain social harmony and stability. In view of the imperfection of the legislation of the crime of extortion, we need to constantly adjust and perfect it through the amendment of the criminal law. In order to better guide the application of the law in the judicial practice, we should introduce the relevant judicial interpretation in view of the defects and deficiencies of the legal provisions. Avoid the confusion of conviction and sentencing.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.35
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