Private lending refers to the financing behavior between natural persons, legal persons and unincorporated organizations. In recent years, criminal cases caused by private lending have emerged one after another, and the most typical one is violent debt collection. As the saying goes, "it is only natural to pay back debts", but debt collection must be done in a legal way. If illegal means such as violence are used to ask for remuneration and thus bear criminal responsibility, it can be said that "stealing chickens and wasting rice" is not worth the candle.
1. What is "violent debt collection"
First of all, we must make clear what is "violent debt collection". The "violence" in criminal law is not limited to the common sense of ordinary people. Tangible physical force directly acts on human body, causing injury, disability and death. With the strengthening of the protection of personal rights, "soft violence" has also been included in the scope of criminal law regulation. According to the definition of relevant documents, "soft violence" refers to harassment, entanglement, making a scene, gathering people to create momentum and other illegal and criminal means. Seek illegal interests or influence others, which is enough to make others fear and panic, and then form psychological coercion, or affect or restrict personal freedom, endanger personal and property safety, and affect normal life, work, production and business.
Therefore, we should note that the target of "soft violence" is no longer limited to the human body. Generally speaking, according to the different objects, the most common forms of "soft violence" in practice can be divided into three categories:
(1) violated personal rights, democratic rights and property rights, such as stalking, threatening to spread diseases, exposing privacy, maliciously reporting, falsely accusing, damaging, and occupying property.
(2) Taking the normal life, work, production and business order as the object of infringement: such as illegally invading other people's houses, destroying living facilities, setting up living obstacles, posting newspapers, hanging banners, setting off firecrackers, playing funeral music, placing wreaths, throwing dirt, cutting off water and electricity, blocking doors and stopping work, and directly or indirectly controlling factories, office areas and business premises by expelling employees and sending people to guard.
(3) Taking social order as the object of infringement, such as impersonating demonstrations, gathering people to harass, blocking roads, creating troubles, etc.
Therefore, violent debt collection includes the aforementioned "soft violence" in addition to using tangible forces that directly act on the human body, and in recent years, violent debt collection regulated by criminal law is mainly based on the aforementioned "soft violence".
2. Crimes that may involve violent debt collection
It should be noted that there is no charge of "violent debt collection" in the criminal law, but the act of using violent means to collect debts is directly regulated. Before the implementation of Criminal Law Amendment (XI), in practice, violent debt collection often involved the crime of stirring up trouble, intentional injury, illegal detention, extortion and even robbery. After the implementation of the 11th Amendment to the Criminal Law, violent debt collection may directly constitute the crime of illegal debt collection. Generally speaking, the most direct regulation of criminal law on violent debt collection is the crime of picking quarrels and provoking troubles and the crime of illegal debt collection. The following focuses on these two charges.
3. Violent debt collection may constitute the crime of stirring up trouble and its filing standard.
According to Article 293 of the Criminal Law, whoever extorts money or arbitrarily damages or encroaches on public or private property, if the circumstances are serious and disturbs social order, may constitute the crime of stirring up trouble and be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance; Whoever commits the above acts repeatedly and seriously disrupts social order shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years and may also be fined.
Before the crime of illegal debt collection was introduced, violent debt collection was often regarded as "seizing public and private property", and the maximum legal punishment could reach ten years under the above provisions. What needs special attention is that the difference between this crime and the crime of illegal debt collection is that its scope of establishment is not limited to "illegal debt collection". In other words, th
(a) forcibly demanding public or private property worth more than 1,000 yuan, or arbitrarily damaging or occupying public or private property worth more than 2,000 yuan;
(two) repeated extortion or arbitrary damage, occupation of public and private property, resulting in adverse social impact;
(three) extortion or arbitrary destruction, occupation of mental patients, the disabled, vagrants and beggars, the elderly, pregnant women and minors, resulting in adverse social impact;
(4) Causing serious consequences such as mental disorder and suicide of others;
(five) seriously affect the work, life, production and operation of others;
(6) Other serious circumstances.
The above four standards are clear, and the last two are general rules. Generally speaking, according to the pattern strictly recognized in China's judicial practice, violent debt collection is often easily recognized as "serious circumstances".
4. Violent debt collection may constitute illegal debt collection and its filing criteria.
According to Article 293- 1 of the Criminal Law, anyone who illegally collects debts for high-interest loans by means of violence, coercion, restriction of others' personal freedom, intrusion into others' houses, intimidation, stalking and harassment, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or shall only be fined.
After the implementation of the Criminal Law Amendment (XI), usury and other violent acts of asking for illegal debts are mainly regulated by this crime. This crime has certain requirements for the subject of crime, that is, special subjects such as high-interest lenders and professional lenders. So when can "high-interest lenders" and "professional lenders" be generally formed?
(1) High-interest lender: According to relevant regulations, the interest rate of private lending shall not exceed 4 times of the one-year LPR when the contract is established, so the subject lending at an interest rate higher than 4 times of the one-year LPR can constitute a "high-interest lender";
(2) Professional lenders: according to relevant regulations, for the purpose of making profits, they regularly issue loans to unspecified social objects, that is, professional lending; Among them, "regularly granting loans to unspecified objects in society" refers to granting funds to unspecified objects (including units and individuals) in the form of loans or other names 10 times or more within two years.
5. The defense points caused by the change of charges.
According to the foregoing, violent debt collection can be identified as the crime of picking quarrels and provoking troubles or the crime of demanding illegal debts by violence, among which the crime of picking quarrels and provoking troubles also includes the situation of violent debt collection. Previous criminal record
The maximum statutory penalty reaches 10 year, and the maximum statutory penalty for the latter crime is 3 years. The same behavior, identified as different crimes mentioned above, may lead to very different penalties.
Amendment XI to the Criminal Law came into effect on March 1 20265438. According to the principle of "from the old to the light" in the criminal law, if the new legal provisions are more favorable to the actor at the trial, the legal provisions at the trial should be applied. Then, if the perpetrator violently urges illegal debts on March, 2002 1 year1day, the crime of urging illegal debts should be applied, instead of the crime of provoking trouble at trial. Cases in practice, such as Wu Hancheng's illegal detention, extortion, and trouble-making. Wu Hancheng, an actor, was sentenced to 6 years in prison for illegal debt collection in the first instance, and 2 years 10 months in the second instance. The difference is obvious.
Therefore, as a creditor, the means of debt collection must be reasonable and legal, so as to avoid the failure of debt collection and imprisonment. As a defender, we must master the evolution and changes of the application of relevant laws and regulations in order to better safeguard the legitimate rights and interests of clients.
Related Questions and Answers: Related Questions and Answers: Is the debt collection company legal? Debt collection companies are illegal.
"At present, in China, most people know about debt collection companies, but few people know that debt collection companies are illegal." Prosecutor Joe said that "paying back debts" has been taken for granted by China people since ancient times. However, sometimes due to the debtor's disappearance or deliberate evasion of debts, it is difficult for creditors to repay their debts by themselves, and it is difficult to ask the court for help, which is costly, long-term and difficult to implement. Therefore, debt collection companies have a survival market. However, there is no legal basis for debt collection companies to undertake agency accounts to collect debts, and they lack the authority and administrative enforcement given by law. Some debt collection companies use threats, cajoling, extortion and other improper means to forcibly collect debts from debtors, even kidnap hostages and engage in illegal and criminal activities such as violence endangering personal safety. The existence of debt collection companies not only disturbs the normal production, work and life order of enterprises, institutions and citizens, but also endangers social order, encourages illegal debt collection activities underground and causes adverse effects in society.
The state has banned it three times. 1993, the State Administration for Industry and Commerce issued the Notice on Stopping the Registration of Debt Collection Companies Submitted by Public, Procuratorial, Legal and Ministry Organs, explicitly requiring industrial and commercial administrations at all levels to immediately stop the registration of debt collection companies and similar enterprises submitted by public, legal and Ministry organs; For those who have registered, the administrative authorities for industry and commerce at all levels shall notify them to immediately stop the "debt collection" business. 1995, the Ministry of Public Security and the State Administration for Industry and Commerce issued a notice prohibiting any unit or individual from setting up debt collection companies. The notice stipulates that the administrative department for industry and commerce shall clean up the registered companies and enterprises engaged in debt collection business and notify them to apply for cancellation or change of registration; If the notice is not implemented, the business license shall be revoked by the administrative department for industry and commerce. In 2000, the above two departments banned all kinds of debt collection companies again, and prohibited any unit or individual from setting up any form of debt collection companies. In 2002, the Trademark Office of the State Administration for Industry and Commerce adjusted the scope of trademark classification registration, and emerging service industries such as "detective companies" and "private bodyguards" appeared in the newly promulgated Division Table of Registration of Trademarks for Goods and Services, but debt collection companies were still prohibited.
Case study:
According to media reports, Zongmou, an employee who was expelled from a business company in Shanghai, thought that the company should pay some compensation, but was rejected because it was not recognized by the company. According to the advertisement published in the newspaper, Zongmou found a business investigation company named "Ruibida", signed a debt collection contract with it and paid a certain agency fee. The next day, many strong men from the company came to the trading company where Zongmou had worked before, and threatened the employees in the trading company not to work by force. Liu, the manager of the commercial company, was forced to write "voluntarily paying debts with cars" when he was beaten. The driver Li was also beaten by several people for refusing to hand over the car keys. Under the strict control of the police, 15 suspects suspected of provoking trouble were arrested. After investigation, the gang secretly engaged in illegal debt collection activities under the banner of a commercial investigation company, and used various illegal means such as violence, threats, intimidation, disrupting the company's operation and the normal life of others to collect debts. The agency fee charged is usually between 20% and 30%, and 15 suspects were convicted and sentenced for the crime of stirring up trouble.
Coincidentally, Zhou, a citizen of Hangzhou, was kidnapped and blackmailed by a debt collection company, instead of asking the debt collection company for help. Zhou mistakenly believed that his friend Ding Mou was a usurer and handed over 400,000 yuan raised everywhere to Ding Mou. However, by the agreed time limit, Ding only gave Zhou An a loan of 900,000 yuan, claiming that he was unable to pay back the money because of his own operational mistakes. When Zhou failed to collect debts, he contacted Han, who opened a debt collection company, and promised to pay him 30% of the remuneration. After days of stalking, Han and four men from his company hijacked Ding from his residential area to a car and beat him. One of the men also stabbed Ding in the leg with a dagger and threatened to break the tendons of his hands and feet. After more than 20 hours of inquiries, Han and other five people failed to collect debts. In a rage, the five people turned to Zhou and asked Zhou for a labor fee of 270,000 yuan. When Zhou refused to pay, five people took Zhou under control and forced him to write a debit note in a private house. Zhou fled to the police station to report the case on the pretext of taking money.
Statistics show that the proportion of overdue accounts receivable held by Chinese enterprises has been very high. From government agencies, enterprises and companies to ordinary natural persons, including migrant workers, there are all kinds of victims of debt default, and the annual losses caused by credit problems in China alone amount to more than 600 billion yuan. "Market demand determines market supply, which is a huge market demand and space for debt collection companies." According to conservative estimates by insiders, at least 654.38 million people in China are engaged in this shady debt collection occupation. "In the future, the number of people engaged in this high-profit occupation may exceed 1 10,000." These companies established in the name of "consultation" and "investigation" are actually debt collection companies with "debt collection" as their business. They often use long-term stalking, seizing valuables, threatening to make phone calls and other means, and some even use violent means to collect debts, even causing criminal crimes such as casualties and multi-person fights.
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 proper ways to solve debt disputes: first, the parties themselves negotiate to solve them; Second, there are legal workers involved and solved through non-litigation methods; The third is to solve it through arbitration and litigation. The emergence of debt collection companies has impacted the formal legal service market. Most of the business activities of debt collection companies are abnormal and irregular, which may breed various problems and undermine the normal legal order and should be banned.
At the same time, the court should increase the criminal sanctions against Lao Lai. "At present, the judiciary has imposed severe sanctions on violent debt collection, but the criminal responsibility of' Lao Lai' is not enough." The increase of violent debt collection exposed the lack of honesty in China. Some debtors do not pay back the money and transfer their property to prevent the court from executing it. However, in practice, there are not many "Lao Lai" who accept legal punishment for "refusing to execute judgments and rulings". Therefore, the judicial organs need to increase the criminal punishment for such hooliganism, which will not only help to improve the integrity of the whole society, but also help to reduce the excessive behavior caused by unsuccessful debt collection.
In April, 2006, China Employment Training Technical Guidance Center of the Ministry of Labor and Social Security listed commercial bill collectors as a newly released occupation. Commercial collectors systematically study the relevant laws and regulations of commercial collection, internal account management, non-litigation practice methods, debtor's psychological characteristics diagnosis, etc., and help enterprises recover "accounts receivable" in time through professional and legal collection services. I hope this system will mature as soon as possible, so that more creditors can benefit.
To sum up, the existence of debt collection companies not only disturbs the normal production, work and life order of enterprises, institutions and citizens, but also endangers social order, encourages illegal debt collection activities underground and causes adverse effects in society. The state has successively issued three documents prohibiting and explicitly banning all kinds of debt collection companies, and prohibiting any unit or individual from setting up any form of debt collection companies. So debt collection companies are illegal. I hope the above content can help you. Lawyer Bian Xiao 365 reminds you that it is best to recover debts through professional lawyers.
Debt collection companies have exposed many social problems.
"Debt collection companies have exposed many social problems," the judge said. First, the legal consciousness is weak. On the one hand, the debtor unilaterally thinks that the debt is only a moral issue and does not violate the law, so he hides from hiding and even defaults on the debt by deception, which leads to escalating contradictions among creditors; On the other hand, creditors mistakenly believe that "paying back debts" is a matter of course. They feel that no matter what method is adopted, as long as the debtor can pay off debts, they will turn to debt collection companies without success, and they simply don't realize that it is also an illegal and criminal act to ask for legal debts by illegal means.
The second is to make huge profits. Under normal circumstances, the remuneration charged by debt collection companies is 20% to 30% of the creditor's rights, and even if the debt collection fails, creditors will be required to pay a certain amount of labor fees, and creditors will not dare not give it, which can be described as drought and flood protection. Therefore, driven by a high percentage of interest returns, debt collection companies are repeatedly banned, and people are constantly risking criminal punishment.
Third, there is a lack of effective legal remedies for creditor's rights and debts. When the debtor evaded, delayed and defaulted on his debts for a long time, the creditor could not find a timely, legal and effective legal way to protect his rights when his creditor's rights could not be realized. If you enter the judicial process, it will take a long operation cycle, which will easily make the debtor transfer assets, and eventually you may pay a certain litigation cost because you can't enforce it, which will discourage creditors. In desperation, creditors will choose debt collection companies with less investment, quick results and effective guarantees.
Fourth, citizens' personal privacy lacks a confidentiality mechanism. Sometimes creditors can't find the debtor, but debt collection companies can accurately find and control the debtor, because citizens' personal privacy information is leaked to criminals at will, which is also a side factor that leads debt collection companies to successfully complete their "business".
Fifth, the lack of credit system. At present, there is no personal credit file in China, and debtors' non-repayment will not be recorded, which will not have a particularly great impact on their future study, life, work, production and operation, which makes the social cost of debtors' arrears or even default very low, thus boosting the confidence of these debtors with bad credit.
Debt collection companies often lead to criminal offences.
Lawyers told reporters that the procedures for debt collection companies to collect debts are usually: finding the debtor-locking the debtor's scope of activities-controlling the debtor-urging the debtor to pay off debts-and obtaining the agreed remuneration from creditors. The success of debt collection companies depends on two means: psychological threat and physical threat. Under normal circumstances, debt collection companies mostly collect debts through personal threats, and personal threats can easily lead to criminal offences. Judging from the debt collection gangs that have been found to constitute crimes, debt collection companies have the following characteristics in causing criminal offences.
The composition of debt collectors is very complicated. The members of debt collection companies are complex, and most of them are unemployed or released from prison. Illegal means of debt collection. After signing the entrustment agreement with creditors, members of debt collection companies use long-term stalking, seizing valuables, threatening by telephone and other means, and some even use violence or threats to force the parties to repay their debts. In short, in order to achieve their goals, "they will try all kinds of illegal means". Obtain illegal interests and plunder. For debtors, members of debt collection companies usually beg for money by improper means such as importuning, language threats and even violence; For the creditors who entrust them, if they fail to recover their debts or get the corresponding commissions, they will find excuses to pay the investigation fees, travel expenses and other demands for money. The process of debt collection may involve various criminal offences. Members of debt collection companies usually deliberately make trouble in the name of debt collection. Their illegal acts by violent means may violate many crimes: for example, in the process of debt collection, they quarreled with debtors, so they gathered to fight and were suspected of gathering people to fight; Or make trouble with the debtor company at will, disturb the normal production and operation order, and be suspected of making trouble; Others, because they didn't get the debt, they couldn't get the "remuneration" from the client, and in turn extorted the "labor fee" from the debtor, which was suspected of extortion; In the process of begging, the debtor refused, and he was dissatisfied, deliberately hurting the debtor's body and retaliating, suspected of intentional injury; In order to force the debtor to repay the debt as soon as possible, he illegally controlled the debtor's personal freedom for a long time and was suspected of illegal detention.