權利行使與財產犯罪:實踐分析和邏輯展開

Asserting Rights and Property Crimes: Practical Analysis and Logical Development

實踐中，行為人主張債權或其他財產權利時使用恐嚇或欺騙手段的情形並不少見，司法人員面對這類案件極易產生定罪衝動；理論上的多數說認為這類行為符合財產犯罪的構成要件，僅可能阻卻違法。這些立場都值得反思。定罪範圍過寬的實務操作與財產犯罪的本質並不相符；依靠私力救濟這種（超法規的）違法阻卻事由解決涉及權利行使的犯罪認定問題，等於沒有給被告人“出路”，在我國當下不是理想的方案。為此，從構成要件符合性的角度切入，根據整體財產損害的邏輯，認為主張權利的行為不會給對方造成實質的財產損害，從而在違法性判斷之前就否定行為的犯罪性，從邏輯上講得通，也更為務實，能夠遏制近年來將主張權利的行為大量認定為敲詐勒索等罪的司法趨勢。基於請求權基礎而恐嚇對方的，由於從一開始就不可能造成實質的財產損失，實行行為性、非法佔有目的等也都可以被否定。在權利存在爭議，以及行為人自認為在拆遷補償等事項中“吃虧”，使用舉報、向媒體揭發等恐嚇手段提出較高賠償要求等情形中，只要行為人具有相應的權利根據，對相對人的交付就不應評價為產生了財產損失，被告人不應構成敲詐勒索等財產犯罪。使用暴力、威脅手段索要債務，其濫用權利的手段行為構成妨害社會管理秩序等其他犯罪的，按照相應犯罪處理。

In practice, it is not uncommon for actors to use intimidation or deception when claiming creditor’s rights or other property rights, and judicial personnel are prone to conviction impulse in the face of such cases; in theory, most people think that this kind of behavior is in line with the constitutive elements of property crime and can only prevent breaking the law. The above positions are worthy of reflection. The practical operation with too wide scope of conviction is not consistent with the nature of property crime; because the civil law does not recognize that the right holder can claim rights by intimidation and deception, the abuse of rights should not be justified in criminal law. Relying on illegal obstructions to solve the problems of the exercise of rights and property crimes is tantamount to not giving the defendant a “way out”, which is not an ideal plan in our country. For this reason, from the point of view of the constitutive elements, the author thinks that the act of claiming rights will not cause substantial property damage to the other party, so as to negate the criminality of the act before the judgment of illegality, which makes sense logically and is more pragmatic. It can curb the judicial status quo that a large number of acts claiming rights are identified as crimes such as extortion in recent years. For those who intimidate each other based on the right of claim, because it is impossible to cause substantial property losses from the very beginning, the implementation of behavior and the purpose of illegal possession can also be denied. In cases where there is a dispute over rights, and the actor thinks that he “suffers losses” in matters such as demolition compensation, and puts forward higher compensation claims by means of intimidation such as reporting and exposing to the media, as long as the actor has the corresponding right basis, the delivery of the relative person should not be evaluated as property loss, and the defendant should not constitute property crimes such as extortion. Those who demand debts by means of violence or threats, and whose abuse of power constitutes other crimes such as impairing social management order, shall be dealt with in accordance with the corresponding crimes.