顧某等強迫交易案評析
發(fā)布時間：2019-04-16 16:20
【摘要】：近年來，強迫交易的案件時有發(fā)生，強迫交易罪的行為人往往使用暴力、威脅等手段，侵害市場交易主體的人身、財產(chǎn)等權利。雖然立法在不斷完善，但是并沒有相對應的司法解釋對此行為予以規(guī)制，尤其是受長期以來司法實踐中存在的陳舊觀念的影響，導致了刑法理論界和司法人員對強迫交易罪的認識產(chǎn)生了巨大分歧。如何正確認定強迫交易罪、合理區(qū)分強迫交易罪與相關犯罪的界限一直是司法實踐中的一大難題，這就要求我們要認真細致的研究和解讀新的法律條文。 通過對顧某等強迫交易案這一具體案件分析，從法院的審理情況入手，梳理案情，理清本案的爭議焦點，第一顧某等人的行為是否構成犯罪，第二定罪上應該定強迫交易罪還是搶劫罪。構成犯罪與否主要是從犯罪的基本特征和犯罪的構成要件來分析，而對于罪名的區(qū)分不僅需要分析犯罪構成的差別，還需要理清以下幾個關鍵問題的定性：一是行為人與被害人之間是否存在特定的交易；二是行為人牟取的非法經(jīng)濟利益超出合理價錢、費用的絕對數(shù)額和比例；三是行為人使用暴力、威脅手段的程度。此外還必須考慮法律概念本質(zhì)和案件事實本質(zhì)的關聯(lián)程度。最后可以得出如下結論：首先，本案中顧某等人的行為具有犯罪的基本特征，符合犯罪的構成要件，構成犯罪。其次，從犯罪構成要件整體分析可以得出本案不構成搶劫罪。最后，行為人主觀上具有牟取非法經(jīng)濟利益的目的與強迫交易的故意，客觀上利用暴力、威脅的手段實施了強迫交易的行為11次之多，，交易金額超出正常費用的60倍，不僅嚴重侵犯了被害人的人身權和財產(chǎn)權，同時也侵犯了公平、自由的市場競爭秩序，情節(jié)十分嚴重，所以本案應定性為強迫交易罪。 對顧某等強迫交易案的評析體現(xiàn)了解讀法治、適用法律過程中所應秉持的司法理念。審判的過程實際上是法官通過事實的確認將法律運用到具體場合的過程。這一過程當然應貫徹以事實為依據(jù)，以法律為準繩的原則，但當法官面臨事實行為界定困難或法律文本語義模糊時，不妨采取更為謙抑的態(tài)度，以公正為出發(fā)點去判斷案情、選擇適用的法律。只有這樣，才能真正實現(xiàn)刑事審判的司法公正性。
[Abstract]:In recent years, the cases of forced transaction occur frequently. The perpetrators of the crime of forced transaction often use violence, threats and other means to infringe on the rights of the main body of the market transaction, such as the person, property and so on. Although the legislation is constantly improving, but there is no corresponding judicial interpretation to regulate this behavior, especially by the long-standing judicial practice of the stereotype of the influence of the concept, Led to the criminal law theory and judicial personnel's understanding of the crime of forced transaction has produced great differences. How to correctly identify the crime of forced transaction and reasonably distinguish the boundary between the crime of forced transaction and related crimes has always been a difficult problem in judicial practice, which requires us to study and interpret the new legal provisions carefully and carefully. Through the analysis of the specific case of the forced transaction case of Gu et al, starting with the hearing of the court, combing the case, clarifying the focus of the dispute in this case, whether the behavior of the first Gu and others constitutes a crime or not, The second conviction should be imposed on the crime of forced trading or robbery. Whether the crime is constituted or not is mainly analyzed from the basic characteristics of the crime and the constituent elements of the crime, and the distinction of the crime not only needs to analyze the difference of the constitution of the crime. It is also necessary to clarify the following key issues: first, whether there is a specific transaction between the actor and the victim; The second is that the illegal economic benefit obtained by the actor exceeds the reasonable price, the absolute amount and the proportion of the cost, and the third is the extent of the perpetrator using violence and threatening means. In addition, it is necessary to consider the degree of connection between the nature of legal concept and the nature of the facts of the case. Finally, the following conclusions can be drawn: firstly, the behavior of certain people in this case has the basic characteristics of the crime, which conforms to the constituent elements of the crime and constitutes a crime. Secondly, from the overall analysis of the constituent elements of the crime, it can be concluded that this case does not constitute the crime of robbery. Finally, the perpetrator subjectively has the purpose of seeking illegal economic benefits and the intention of forcing transactions, objectively using violence, threatening means to carry out forced transactions of 11 times, the amount of transactions more than 60 times the normal cost, Not only seriously violated the victim's personal rights and property rights, but also violated the fair and free market competition order, the circumstances are very serious, so this case should be characterized as a crime of forced trading. The analysis of the forced transaction case of Gu and so on embodies the judicial idea which should be held in the process of interpreting the rule of law and applying the law. The process of trial is in fact a process in which the judge applies the law to specific situations through the confirmation of facts. This process should, of course, be based on facts and be based on the principle of law, but when judges face difficulties in defining factual acts or ambiguous semantics of legal texts, they may wish to adopt a more modest attitude and take justice as the starting point for judging the case. Choose the applicable law. Only in this way, can we truly realize the justice of criminal trial.
【學位授予單位】：湖南大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D924.3
本文編號：2458917
[Abstract]:In recent years, the cases of forced transaction occur frequently. The perpetrators of the crime of forced transaction often use violence, threats and other means to infringe on the rights of the main body of the market transaction, such as the person, property and so on. Although the legislation is constantly improving, but there is no corresponding judicial interpretation to regulate this behavior, especially by the long-standing judicial practice of the stereotype of the influence of the concept, Led to the criminal law theory and judicial personnel's understanding of the crime of forced transaction has produced great differences. How to correctly identify the crime of forced transaction and reasonably distinguish the boundary between the crime of forced transaction and related crimes has always been a difficult problem in judicial practice, which requires us to study and interpret the new legal provisions carefully and carefully. Through the analysis of the specific case of the forced transaction case of Gu et al, starting with the hearing of the court, combing the case, clarifying the focus of the dispute in this case, whether the behavior of the first Gu and others constitutes a crime or not, The second conviction should be imposed on the crime of forced trading or robbery. Whether the crime is constituted or not is mainly analyzed from the basic characteristics of the crime and the constituent elements of the crime, and the distinction of the crime not only needs to analyze the difference of the constitution of the crime. It is also necessary to clarify the following key issues: first, whether there is a specific transaction between the actor and the victim; The second is that the illegal economic benefit obtained by the actor exceeds the reasonable price, the absolute amount and the proportion of the cost, and the third is the extent of the perpetrator using violence and threatening means. In addition, it is necessary to consider the degree of connection between the nature of legal concept and the nature of the facts of the case. Finally, the following conclusions can be drawn: firstly, the behavior of certain people in this case has the basic characteristics of the crime, which conforms to the constituent elements of the crime and constitutes a crime. Secondly, from the overall analysis of the constituent elements of the crime, it can be concluded that this case does not constitute the crime of robbery. Finally, the perpetrator subjectively has the purpose of seeking illegal economic benefits and the intention of forcing transactions, objectively using violence, threatening means to carry out forced transactions of 11 times, the amount of transactions more than 60 times the normal cost, Not only seriously violated the victim's personal rights and property rights, but also violated the fair and free market competition order, the circumstances are very serious, so this case should be characterized as a crime of forced trading. The analysis of the forced transaction case of Gu and so on embodies the judicial idea which should be held in the process of interpreting the rule of law and applying the law. The process of trial is in fact a process in which the judge applies the law to specific situations through the confirmation of facts. This process should, of course, be based on facts and be based on the principle of law, but when judges face difficulties in defining factual acts or ambiguous semantics of legal texts, they may wish to adopt a more modest attitude and take justice as the starting point for judging the case. Choose the applicable law. Only in this way, can we truly realize the justice of criminal trial.
【學位授予單位】：湖南大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D924.3
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本文編號：2458917
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