敲诈勒索的行为只有数额较大时,才构成犯罪。数额巨大或者有其他严重情节,是本罪的加重情节,所谓情节严重,主要是指:敲诈勒索罪的惯犯;敲诈勒索罪的连续犯;对他人的犯罪事实知情不举并乘机进行敲诈勒索的;乘人之危进行敲诈勒索的;冒充国家工作人员敲诈勒索的;敲诈勒索公私财物数额巨大的;敲诈勒索手段特别恶劣,造成被害人精神失常、自杀或其他严重后果的;等等。
(三)主体要件
本罪的主体为一般主体。凡达到法定刑事责任年龄且具有刑事责任能力的自然人均能构成本罪。
(四)主观要件
本罪在主观方面表现为直接故意,必须具有非法强索他人财物的目的。如果行为人不具有这种目的,或者索取财物的目的并不违法,如债权人为讨还久欠不还的债务而使用带有一定威胁成份的语言,催促债务人加快偿还等,则不构成敲诈勒索罪。
[编辑本段]三、认定
(一)本罪既遂与未遂的界限
行为人使用了威胁或要挟手段,非法取得了他人的财物,就构成了敲诈勒索罪的既遂。如果行为人仅仅使用了威胁或要挟手段,被害人并未产生恐惧情绪,因而没有交出财物;或者被害人虽然产生了恐俱,但并未交出财物,均属于敲诈勒索罪的未遂。
(二)本罪与抢劫罪的界限
仅从字面看,“威胁”既是抢劫罪的手段之一,又是敲诈勒索罪的基本行为方式。但是,其威胁的特定内涵不同:(1)从威胁的方式看,抢劫罪的威胁,是当着被害人的面直接发出的;而敲诈勒索罪的威胁可以当面发出,也可以通过书信、电话或第三者转达。(2)从实现威胁的时间看,抢劫罪的威胁表现为扬言如不交出财物,就要当场实现所威胁的内容;而敲诈勒索罪的威胁则一般表现为,如不答应要求将在以后某个时间实现威胁的内容。(3)从威胁的内容看,抢劫罪的威胁,都是以杀害、伤害等侵害人身相威胁;而敲诈勒索罪的威胁内容则比较广泛,包括对人身的加害行为或者毁坏财物、名誉等。(4)从非法取得财物的时间看,抢劫罪是实施威胁当场取得财物;而敲诈勒索则可以在当场,也可以在事后取得。可见,这两种犯罪中的威胁既有区别,又有联系,如果案件事实同上述抢劫威胁的各特点相符合,应以抢劫罪论处。如果其中有一条不符合,则应以敲诈勒索罪论处。
(三)本罪与招摇撞骗罪的界限
在实践中,有些犯罪分子往往假冒公安人员、海关缉查人员、工商管理人员以及税务人员等国家工作人员的身份,敲诈他人钱财,似乎与招摇撞骗罪相同,实则构成敲诈勒索罪。这两种犯罪的主要区别是:
1、行为特征不同。招摇撞骗罪是以骗为特征,完全以假象蒙蔽被害人;敲诈勒索行为虽然也可能含有欺骗的成份,但却以威胁或要挟为特征。
2、造成被害人交出财物的心理状态不同。在招摇撞骗罪中,被害人在受骗后,“自愿”交出财物或出让其他合法权益;而敲诈勒索行为则造成被害人精神上的恐惧,出于无奈,被迫交出财物或出让其他财产性利益。
3、获取利益的范围不同。招摇撞骗罪所获取利益范围比较广泛,既包括财物或财产性利益,又包括非财产性利益,如骗取某种职称或职务,政治待遇或荣誉称号等;敲诈勒索罪所获取的仅限于财物。
4、侵犯的客体不同。招摇撞骗罪侵犯的客体是国家机关的威信及社会管理秩序;敲诈勒索罪所侵犯的客体是公私财物的所有权和公民人身权利以及其他合法权益。
四、处罚
犯本罪的,处三年以下有期徒刑、拘役或者管制;数额巨大或者有其他严重情节,处三年以上十年以下有期徒刑。
五、追诉标准
根据有关解释,数额较大是指涉案金额1000元至3000元。数额巨大以10000元至30000元为起点
(三)主体要件
本罪的主体为一般主体。凡达到法定刑事责任年龄且具有刑事责任能力的自然人均能构成本罪。
(四)主观要件
本罪在主观方面表现为直接故意,必须具有非法强索他人财物的目的。如果行为人不具有这种目的,或者索取财物的目的并不违法,如债权人为讨还久欠不还的债务而使用带有一定威胁成份的语言,催促债务人加快偿还等,则不构成敲诈勒索罪。
[编辑本段]三、认定
(一)本罪既遂与未遂的界限
行为人使用了威胁或要挟手段,非法取得了他人的财物,就构成了敲诈勒索罪的既遂。如果行为人仅仅使用了威胁或要挟手段,被害人并未产生恐惧情绪,因而没有交出财物;或者被害人虽然产生了恐俱,但并未交出财物,均属于敲诈勒索罪的未遂。
(二)本罪与抢劫罪的界限
仅从字面看,“威胁”既是抢劫罪的手段之一,又是敲诈勒索罪的基本行为方式。但是,其威胁的特定内涵不同:(1)从威胁的方式看,抢劫罪的威胁,是当着被害人的面直接发出的;而敲诈勒索罪的威胁可以当面发出,也可以通过书信、电话或第三者转达。(2)从实现威胁的时间看,抢劫罪的威胁表现为扬言如不交出财物,就要当场实现所威胁的内容;而敲诈勒索罪的威胁则一般表现为,如不答应要求将在以后某个时间实现威胁的内容。(3)从威胁的内容看,抢劫罪的威胁,都是以杀害、伤害等侵害人身相威胁;而敲诈勒索罪的威胁内容则比较广泛,包括对人身的加害行为或者毁坏财物、名誉等。(4)从非法取得财物的时间看,抢劫罪是实施威胁当场取得财物;而敲诈勒索则可以在当场,也可以在事后取得。可见,这两种犯罪中的威胁既有区别,又有联系,如果案件事实同上述抢劫威胁的各特点相符合,应以抢劫罪论处。如果其中有一条不符合,则应以敲诈勒索罪论处。
(三)本罪与招摇撞骗罪的界限
在实践中,有些犯罪分子往往假冒公安人员、海关缉查人员、工商管理人员以及税务人员等国家工作人员的身份,敲诈他人钱财,似乎与招摇撞骗罪相同,实则构成敲诈勒索罪。这两种犯罪的主要区别是:
1、行为特征不同。招摇撞骗罪是以骗为特征,完全以假象蒙蔽被害人;敲诈勒索行为虽然也可能含有欺骗的成份,但却以威胁或要挟为特征。
2、造成被害人交出财物的心理状态不同。在招摇撞骗罪中,被害人在受骗后,“自愿”交出财物或出让其他合法权益;而敲诈勒索行为则造成被害人精神上的恐惧,出于无奈,被迫交出财物或出让其他财产性利益。
3、获取利益的范围不同。招摇撞骗罪所获取利益范围比较广泛,既包括财物或财产性利益,又包括非财产性利益,如骗取某种职称或职务,政治待遇或荣誉称号等;敲诈勒索罪所获取的仅限于财物。
4、侵犯的客体不同。招摇撞骗罪侵犯的客体是国家机关的威信及社会管理秩序;敲诈勒索罪所侵犯的客体是公私财物的所有权和公民人身权利以及其他合法权益。
四、处罚
犯本罪的,处三年以下有期徒刑、拘役或者管制;数额巨大或者有其他严重情节,处三年以上十年以下有期徒刑。
五、追诉标准
根据有关解释,数额较大是指涉案金额1000元至3000元。数额巨大以10000元至30000元为起点
The racketeering acts only when a larger amount will constitute a crime. A huge amount, or any other serious circumstances, the aggravating circumstances of this crime, the so-called serious cases, mainly refers to: the crime of extortion recidivist; extortion crimes committed in a row; others do not know the facts of the crime and give the opportunity for extortion ; For extortion Shengrenzhiwei; posing as the national staff of blackmail; extortion huge amount of public and private property; a means of blackmail and in particular the poor, causing the victim mental disorders, suicide or other serious consequences; and so on.
(C) of the main elements of
This crime as the main body of the main general. Where the statutory age of criminal responsibility and criminal responsibility with the natural ability of this can constitute a crime.
(D) of the subjective element
Subjective aspects of this crime in the performance of the direct intentional, must have a strong claim of illegal property. If the perpetrator does not have such a purpose, the purpose of property obtained or is not against the law, such as creditors get back for a long time do not owe the debt but also with the use of certain elements of the language of threat, urged to speed up the debtor to repay, and so does not constitute the crime of extortion .
[Edit this paragraph] three, that
(A) completed this crime and attempted to define the limits
The perpetrator used a means of blackmail or threats, unlawful access to the property of others, it constitutes the crime of extortion completed. If the perpetrator is only the threat or use of the means of coercion, the victim did not have a feeling of fear and thus did not hand over property; Although the victims or had a fear, but did not hand over property, belong to the crime of attempted extortion.
(B) of this crime and robbery boundaries
From literally, a "threat" is not only one of the means of robbery, extortion is the basic behavior patterns. However, the threat of specific different connotation: (1) from the threat of the way, the threat of robbery, in the presence of the victim's face was directly issued; extortion and threats can be sent in person or by letter, telephone or A third party to convey. (2) From time to realize the threat, the threat of robbery for the performance of the threatened not to hand over such property, it is necessary to achieve the spot by the content of the threat; and the threat of extortion is generally expressed as, if not agreed to the request at a later A time to realize the threat. (3) from the content of the threat, the threat of robbery, are killed or injured, and other threats against the person; extortion and the threat of more extensive content, including acts of physical harm or destruction of property, reputation, and so on. (4) illegal from the time of obtaining property, robbery is a threat to the implementation of obtaining property on the spot; and extortion in the spot can also be made afterwards. We can see that both the threat of crime in both the distinction, and, if the above-mentioned facts of the case with the robbery of a threat to the characteristics of the line should be hauled before the robbery. If there is not one that should be punished to the crime of extortion.
(C) of this crime and the crime of the boundaries of a trickster
In practice, some criminals are fake and public security officers, customs officers spot, business administration, as well as tax countries such as the identity of the staff, extortion money from others, seems to be a trickster with the same crime, but in reality constitute the crime of extortion. The two main differences is a crime:
1, features a different act. The crime of a trickster is characterized by deception, completely fooled by the false impression of the victim; acts of extortion, although it may contain an element of cheating, but by threats or blackmail characterized.
2, causing the victim to hand over the property of different state of mind. A trickster in the crime, the victims have been deceived, "voluntary" surrender or transfer of property other legitimate rights and interests; and acts of extortion victims were caused by the spirit of fear, out of frustration, was forced to hand over property or other transfer of property interests.
3, access to the scope of the different interests. Trickster access to the crime by a much wider range of interests, including not only property or property interests, including non-property interests, such as fraud or some kind of job title, political or honorary titles, such as treatment; extortion by limited access to the property.
4, the object of various violations. Trickster is the object of the crime of violation of the state organs of the prestige and social order management; violations of the crime of extortion is the object of public and private property ownership and civil rights, as well as other legitimate rights and interests.
Fourth, sanctions
Guilty of this crime, and three years imprisonment, criminal detention or control; tremendous amount or other serious circumstances, more than 10 years to three years in prison.
V. prosecution standards
The light of the explanation is the large amount of money involved 1000-3000 yuan. A huge amount to 10000-30000 yuan as a starting point
(C) of the main elements of
This crime as the main body of the main general. Where the statutory age of criminal responsibility and criminal responsibility with the natural ability of this can constitute a crime.
(D) of the subjective element
Subjective aspects of this crime in the performance of the direct intentional, must have a strong claim of illegal property. If the perpetrator does not have such a purpose, the purpose of property obtained or is not against the law, such as creditors get back for a long time do not owe the debt but also with the use of certain elements of the language of threat, urged to speed up the debtor to repay, and so does not constitute the crime of extortion .
[Edit this paragraph] three, that
(A) completed this crime and attempted to define the limits
The perpetrator used a means of blackmail or threats, unlawful access to the property of others, it constitutes the crime of extortion completed. If the perpetrator is only the threat or use of the means of coercion, the victim did not have a feeling of fear and thus did not hand over property; Although the victims or had a fear, but did not hand over property, belong to the crime of attempted extortion.
(B) of this crime and robbery boundaries
From literally, a "threat" is not only one of the means of robbery, extortion is the basic behavior patterns. However, the threat of specific different connotation: (1) from the threat of the way, the threat of robbery, in the presence of the victim's face was directly issued; extortion and threats can be sent in person or by letter, telephone or A third party to convey. (2) From time to realize the threat, the threat of robbery for the performance of the threatened not to hand over such property, it is necessary to achieve the spot by the content of the threat; and the threat of extortion is generally expressed as, if not agreed to the request at a later A time to realize the threat. (3) from the content of the threat, the threat of robbery, are killed or injured, and other threats against the person; extortion and the threat of more extensive content, including acts of physical harm or destruction of property, reputation, and so on. (4) illegal from the time of obtaining property, robbery is a threat to the implementation of obtaining property on the spot; and extortion in the spot can also be made afterwards. We can see that both the threat of crime in both the distinction, and, if the above-mentioned facts of the case with the robbery of a threat to the characteristics of the line should be hauled before the robbery. If there is not one that should be punished to the crime of extortion.
(C) of this crime and the crime of the boundaries of a trickster
In practice, some criminals are fake and public security officers, customs officers spot, business administration, as well as tax countries such as the identity of the staff, extortion money from others, seems to be a trickster with the same crime, but in reality constitute the crime of extortion. The two main differences is a crime:
1, features a different act. The crime of a trickster is characterized by deception, completely fooled by the false impression of the victim; acts of extortion, although it may contain an element of cheating, but by threats or blackmail characterized.
2, causing the victim to hand over the property of different state of mind. A trickster in the crime, the victims have been deceived, "voluntary" surrender or transfer of property other legitimate rights and interests; and acts of extortion victims were caused by the spirit of fear, out of frustration, was forced to hand over property or other transfer of property interests.
3, access to the scope of the different interests. Trickster access to the crime by a much wider range of interests, including not only property or property interests, including non-property interests, such as fraud or some kind of job title, political or honorary titles, such as treatment; extortion by limited access to the property.
4, the object of various violations. Trickster is the object of the crime of violation of the state organs of the prestige and social order management; violations of the crime of extortion is the object of public and private property ownership and civil rights, as well as other legitimate rights and interests.
Fourth, sanctions
Guilty of this crime, and three years imprisonment, criminal detention or control; tremendous amount or other serious circumstances, more than 10 years to three years in prison.
V. prosecution standards
The light of the explanation is the large amount of money involved 1000-3000 yuan. A huge amount to 10000-30000 yuan as a starting point
好长......
累死了.....
The reward points: 0 - from the end of the issue have 11 days 15 hours
The racketeering acts only when a larger amount will constitute a crime. A huge amount, or any other serious circumstances, the aggravating circumstances of this crime, the so-called serious cases, mainly refers to: the crime of extortion recidivist; extortion crimes committed in a row; others do not know the facts of the crime and give the opportunity for extortion ; For extortion Shengrenzhiwei; posing as the national staff of blackmail; extortion huge amount of public and private property; a means of blackmail and in particular the poor, causing the victim mental disorders, suicide or other serious consequences; and so on.
(C) of the main elements of
This crime as the main body of the main general. Where the statutory age of criminal responsibility and criminal responsibility with the natural ability of this can constitute a crime.
(D) of the subjective element
Subjective aspects of this crime in the performance of the direct intentional, must have a strong claim of illegal property. If the perpetrator does not have such a purpose, the purpose of property obtained or is not against the law, such as creditors get back for a long time do not owe the debt but also with the use of certain elements of the language of threat, urged to speed up the debtor to repay, and so does not constitute the crime of extortion .
[Edit this paragraph] three, that
(A) completed this crime and attempted to define the limits
The perpetrator used a means of blackmail or threats, unlawful access to the property of others, it constitutes the crime of extortion completed. If the perpetrator is only the threat or use of the means of coercion, the victim did not have a feeling of fear and thus did not hand over property; Although the victims or had a fear, but did not hand over property, belong to the crime of attempted extortion.
(B) of this crime and robbery boundaries
From literally, a "threat" is not only one of the means of robbery, extortion is the basic behavior patterns. However, the threat of specific different connotation: (1) from the threat of the way, the threat of robbery, in the presence of the victim's face was directly issued; extortion and threats can be sent in person or by letter, telephone or A third party to convey. (2) From time to realize the threat, the threat of robbery for the performance of the threatened not to hand over such property, it is necessary to achieve the spot by the content of the threat; and the threat of extortion is generally expressed as, if not agreed to the request at a later A time to realize the threat. (3) from the content of the threat, the threat of robbery, are killed or injured, and other threats against the person; extortion and the threat of more extensive content, including acts of physical harm or destruction of property, reputation, and so on. (4) illegal from the time of obtaining property, robbery is a threat to the implementation of obtaining property on the spot; and extortion in the spot can also be made afterwards. We can see that both the threat of crime in both the distinction, and, if the above-mentioned facts of the case with the robbery of a threat to the characteristics of the line should be hauled before the robbery. If there is not one that should be punished to the crime of extortion.
(C) of this crime and the crime of the boundaries of a trickster
In practice, some criminals are fake and public security officers, customs officers spot, business administration, as well as tax countries such as the identity of the staff, extortion money from others, seems to be a trickster with the same crime, but in reality constitute the crime of extortion. The two main differences is a crime:
1, features a different act. The crime of a trickster is characterized by deception, completely fooled by the false impression of the victim; acts of extortion, although it may contain an element of cheating, but by threats or blackmail characterized.
2, causing the victim to hand over the property of different state of mind. A trickster in the crime, the victims have been deceived, "voluntary" surrender or transfer of property other legitimate rights and interests; and acts of extortion victims were caused by the spirit of fear, out of frustration, was forced to hand over property or other transfer of property interests.
3, access to the scope of the different interests. Trickster access to the crime by a much wider range of interests, including not only property or property interests, including non-property interests, such as fraud or some kind of job title, political or honorary titles, such as treatment; extortion by limited access to the property.
4, the object of various violations. Trickster is the object of the crime of violation of the state organs of the prestige and social order management; violations of the crime of extortion is the object of public and private property ownership and civil rights, as well as other legitimate rights and interests.
Fourth, sanctions
Guilty of this crime, and three years imprisonment, criminal detention or control; tremendous amount or other serious circumstances, more than 10 years to three years in prison.
V. prosecution standards
The light of the explanation is the large amount of money involved 1000-3000 yuan. A huge amount to 10000-30000 yuan as a starting point