Lawyer

What constitutes a crime in Chapter 534 and the solicitation of illegal debts?

On Wednesday, the week before the October [-] holiday, the Intermediate People's Court held a public hearing on Ding Quan's kidnapping case.Ding Quan's aunt Jin Yan and his daughter-in-law Xiao Juan sat in the public gallery, nervously listening to the prosecutor read out the indictment.

"... This court believes that the defendant Ding Quan breached the contract in the process of purchasing the equity of the victim Zhou Wang's auto repair factory, and has no right to demand the return of the deposit, which should belong to Zhou Wang.

Defendant Ding Quan kidnapped others and asked for this money, which is an act of kidnapping and extortion. His behavior has violated the provisions of Article 230 of the Criminal Law of the People's Republic of China. The facts of the crime are clear and the evidence is credible and sufficient. He should be investigated for criminal responsibility for the crime of kidnapping.

According to the provisions of Article 170 of the "Criminal Procedure Law of the People's Republic of China", if a public prosecution is filed, please sentence it according to law.President of the judge, the indictment has been read out. "Said the male prosecutor sitting at the head of the public prosecutor's seat.

"Defendant Ding Quan, did you hear clearly the indictment read out by the public prosecutor just now? What crimes are you charged with? Do you have any objections to the criminal facts charged in the indictment? Do you have any objections?" asked the presiding judge.

"I have no objection to the facts of the allegations. I did rob Zhou Wang's grandson, but he owed me 20 yuan. I took the child away for the 20 yuan. It was not kidnapping, so I have no objection to the charges. Approved." Ding Quan said.

He has already risked everything, anyway, everything that should be arranged at home has been arranged.

"The public prosecutor can interrogate the defendant on the criminal facts charged in the indictment." The presiding judge said.

"Okay, presiding judge." The prosecutor looked at Ding Quan and said, "Defendant Ding Quan, did you know the victim Zhou Wang before?"

"I don't know." Ding Quan said.

"How do you know that the victim sold the equity of the auto repair factory?" the inspector asked.

"I heard it from someone else, and then I went to talk to him about buying shares, and we both signed a sales contract," Ding Quan said.

"After signing the equity sale contract, have you paid any money?" the inspector asked.

"I paid, I paid a deposit of 10 yuan first. Later, I went to him to discuss the postponement of payment, and gave him another 10 yuan for equity transfer." Ding Quan said.

"Did the two of you go through the formalities for equity transfer?" the inspector asked.

"No. I don't have the money to pay for the rest of the equity transfer. He later sold the equity to someone else." Ding Quan said.

"How did you deal with it later? About the 20 yuan paid before." The inspector asked.

"I went to negotiate with Zhou Wang and wanted to get the money back, but he refused to give it to me." Ding Quan said.

"What's his reason for not giving you the money?" asked the inspector.

"He said that I had breached the contract and the deposit would not be refunded. Later, I found a middleman Zhao Bao to negotiate a peace, and he agreed to refund me 10 yuan." Ding Quan said.

"Has the victim, Zhou Wang, returned the 10 yuan to you?" the prosecutor asked.

"It was not refunded to me. Zhou Wang returned the money to the middleman Zhao Bao. I only found out after kidnapping Zhou Wang's grandson." Ding Quan said.

"Why did you kidnap the victim Zhou Wang's grandson?" asked the prosecutor.

"Because I want to get back the 20 yuan I paid before, but Zhou Wang won't give it to me." Ding Quan said.

"Did Zhou Wang give you money later? After you kidnapped his grandson." The inspector asked.

"Yes, because he paid Zhao Bao with 10 yuan, so I released his grandson for only 10 yuan." Ding Quan said.

"Presiding judge, we're done asking." The prosecutor said.

"The defendant's defender can ask the defendant questions?" said the presiding judge.

"Defendant Ding Quan, have you ever sued the victim in court for the 20 yuan that was paid to the victim before?" Fang Yi asked.

"There is no prosecution." Ding Quan said.

"You kidnapped the victim's grandson, why did you ask for 20 yuan? Why not 30 or 50 yuan?" Fang Yi asked this because he wanted the judge to deepen the comparison between the amount of money demanded for "kidnapping" and the amount Ding Quan paid to the victim before. The relationship between.

"Because I only gave Zhou Wang 20 yuan, of which [-] yuan is a deposit, and the remaining [-] yuan is an equity transfer payment." Ding Quan said.

"Presiding judge, the defender has finished questioning." Fang Yi looked at the presiding judge and said.

……

"The facts of this case have been investigated clearly, the court investigation is over, and the court debate is now beginning. The court debate mainly revolves around the disputed facts that have not been certified by the court and how to apply the law based on the facts.

Let the prosecutor speak first. " said the presiding judge.

"Presiding judge, judge: The public prosecutor believes that the behavior of the defendant Ding Quan constitutes the crime of kidnapping. The reasons are as follows:
20. The defendant, Ding Quan, had breached the contract earlier in the performance of the equity sale contract and had no right to claim back the deposit. Part of the 230 yuan demanded by the defendant was not a legal creditor's right, which meant extortion and did not comply with Article [-] of the Criminal Law. The constituent elements of the crime of illegal detention stipulated in the third paragraph of Article [-].

[-]. The hostage kidnapped by the defendant was not the counterparty in the equity sales contract, but the grandson of the counterparty without any fault.

In summary, the public prosecutor believes that the defendant's kidnapping of others to demand illegal creditor's rights is an act of kidnapping and extortion, and he should be held criminally responsible for the crime of kidnapping.It is recommended that the defendant be sentenced to 15 years in prison.complete. " said the inspector.

"Defendant Ding Quan defended himself," said the presiding judge.

"I didn't kidnap Zhou Wang's grandson, I just want my money back, I'm not kidnapping..." Ding Quan tried his best to argue.

"The defendant's defender issued a defense opinion." The presiding judge said.

"Presiding judge, judge: The defender believes that the defendant's criminal purpose is essentially to extort debts, not to extort property, which complies with the provisions of Article 230, paragraph [-] of the Criminal Law, and constitutes the crime of illegal detention. The reasons are as follows:
According to the third paragraph of Article 230 of the "Criminal Law", illegally seizing or detaining others for the purpose of extorting debts is a crime of illegal detention of the type of debt collection.

According to the provisions of Article 230 of the "Criminal Law", kidnapping others or stealing infants and young children for the purpose of extorting property is a crime of extortion-type kidnapping.

According to the above legal provisions, the main difference between the crime of illegal detention and the crime of kidnapping lies in the criminal purpose of the perpetrator. The purpose of the kidnapping crime of extortion is to extort property, while the crime of illegal detention of the debt collection type is for the purpose of demanding creditor’s rights.

In other words, in the crime of kidnapping, there is generally no creditor-debt relationship between the kidnapper and the victim.In the crime of debt-collecting illegal detention, there is a creditor-debtor relationship between the perpetrator and the detainee.

According to the "Interpretation of the Supreme People's Court on How to Convict the Behavior of Illegally Detaining Others for Obtaining Debts Not Protected by Law", the actor who illegally detains or detains others for the purpose of extorting debts not protected by law such as usury and gambling debts shall also It should be punished as illegal detention, and cannot be classified as a crime of kidnapping.

It can be seen from this that the "creditor's right" in the crime of illegal detention of debt collection can be legal or illegal (such as gambling debts, usury, etc.), but it should be limited to the amount of debt.

In other words, even if there is a real and legal relationship between the perpetrator and the victim, if the amount of ransom demanded by the perpetrator far exceeds the amount of the perpetrator’s debt, then the criminal purpose of the perpetrator is no longer limited to extorting debts At the same time, it has the purpose of extorting property, and it should be dealt with according to the legal application principle of imaginary concurrence of multiple crimes committed by one act, that is, to choose one felony and punish it, and it should be convicted and sentenced for the crime of kidnapping.

Combined with the provisions and interpretation of the appeal law, judging from the facts of the case, Ding Quan's purpose was to extort debts rather than extort property, thus constituting the crime of illegal detention.details as follows:
First, Ding Quan, the defendant in this case, did not actually obtain the equity of Zhouwang Auto Repair Factory. Zhou Wang transferred the equity of Zhouwang Auto Repair Factory to others when Ding Quan did not expressly renounce the purchase of equity. It caused the defendant to insist on asking the victim to return the 20 yuan paid, which is a normal psychological reaction of ordinary people.Under such circumstances, it is inappropriate to require the defendant who has not studied the law to accurately foresee that his request may not be supported by the law.

Second, in the case of a contract dispute between the two parties, before the dispute is tried by the court, the disputed rights and obligations between the two parties are in an unstable state and have not yet been determined.In this case, it is also inappropriate to judge that the defendant cannot claim the return of 20 yuan.

Third, generally speaking, a civil act is an act of the parties' autonomy of will, as long as the two parties' intentions are true and consistent, the law generally does not interfere.Under such circumstances, it is inappropriate to determine that the defendant in this case cannot request the victim to return 20 yuan.

The defendant Ding Quan's illegal detention of the victim's grandson in this case was essentially for the purpose of demanding 20 "debts". It is indeed believed that this kind of "debt" is objective and should exist, and in fact has been claiming the above-mentioned creditor's rights, and the requested amount does not exceed the scope of 20 yuan.

In addition, the defendant in this case initially asked for a refund of 20 yuan, but after learning that the victim had handed over 10 yuan to the middleman Zhao Bao, he immediately changed the demanded money to the remaining 10 yuan.It can be seen from this that the defendant Ding Quan did not exceed the debt range of 20 yuan from the beginning to the end, and did not express any intention of extorting property.

To sum up, the defender believes that although Ding Quan, the defendant in this case, asked for property by kidnapping and detaining others, his behavior was carried out under the control of the purpose of asking for "debt". No other money was extorted, so his behavior did not constitute the crime of kidnapping, but the crime of illegal detention.complete. "Fang Yi said.

"The public prosecutor can respond to the defender's defense opinion." The presiding judge said.

"In response to the defender's defense, the public prosecutor mainly expressed the following views:
The public prosecutor believes that the object of the crime of illegal detention based on debt collection should be specific, that is, the defendant can only detain the party with whom he has a creditor's right and debt relationship, and cannot arbitrarily detain anyone irrelevant to the case, including the party's relatives, etc. Claim the debt from the party with whom the debtor has creditor's rights and debts, otherwise it will infringe the personal freedom of others without fault, and should be punished as the crime of extortion-type kidnapping.

In this case, the defendant detained the victim's grandson, and the detainees exceeded the scope of a specific person (Zhou Wang), because we believe that the defendant's behavior constituted the crime of kidnapping.complete. " said the inspector.

"The defender can respond to the public prosecutor's opinion." The presiding judge said.

"Based on the Prosecutor's Defense Opinion and Responses, the Defense Counsel issued the following Defense Opinion:

The defender believes that in the debt collection crime of illegal detention, the detainee chosen by the creditor is generally the party with whom the creditor has a debt relationship.But this does not mean that the object of the crime of debt collection type illegal detention can only be the party himself who has a creditor's right and debt relationship with the creditor.The reasons are as follows:
[-]. The currently effective laws do not explicitly limit that the "others" in "in order to claim debts, illegally detain or detain others" must be the debtor himself who has a creditor-debtor relationship with the creditor.

[-]. In judicial practice, the creditor may choose to detain the relatives of the debtor, especially his young children, etc. due to the debtor’s evasion or other reasons leading to the inability of the creditor to collect the debt.

The reason is that the debtor has a specific relationship with his relatives and children, and the creditor can use him as a threat to achieve the purpose of recourse to his creditor's rights.

To sum up, limiting the object of the crime of illegal detention of debt collection to the debtor himself who has a creditor-debtor relationship with the creditor, and using this as the difference between the crime of illegal detention of debt collection and the crime of kidnapping of extortion is neither realistic nor meaningful legal basis.complete. "Fang Yi said.

……

"This case has been deliberated by the collegial panel. In view of the opinions of the prosecution and the defense, combined with the focus of the dispute in this case, and based on the facts and evidence of this case, this court makes the following comments:

...Defendant Ding Quan took the victim's grandson into custody by means of seizure in the face of repeated demands for money without hope.The criminal purpose of the defendant in this case was only to get back the prepaid equity transfer payment and deposit, and did not make any other additional demands for extortion; moreover, the object of the defendant’s infringement was also specific, that is, the grandson of Zhou Wang, who had a business relationship with him .

Although the defendant took the method of kidnapping others, subjectively it was not for the purpose of extorting property but for the purpose of extorting debts, so it should still be punished as the crime of illegal detention.

Before this case, the dispute over the equity sale contract had not been tried by the people's court or mediated by the relevant authorities, and the disputed rights and obligations between the buyer and the seller had not been confirmed and realized in accordance with the law, and the dispute still existed.The money demanded by the defendant included both the deposit for purchasing the equity and the advance payment for the equity transfer.

The public prosecution agency held that the defendant had breached the contract and had no right to demand the return of the deposit. If he kidnapped someone to ask for the money, it was considered extortion, and his behavior should be convicted of kidnapping. This qualitative opinion is inappropriate and cannot be supported.

The defense opinion put forward by the defendant and his defender in this case that the defendant kidnapped others for the purpose of debt collection should be convicted and sentenced for the crime of illegal detention, which is in line with the actual situation of the case and is accepted.

In accordance with the provisions of the first and third paragraphs of Article 230 of the "Criminal Law of the People's Republic of China", the judgment: the defendant Ding Quan committed the crime of illegal detention and was sentenced to three years in prison. " said the presiding judge.

After hearing the presiding judge's sentence, Ding Quan's eyes widened. He was already mentally prepared to be sentenced to more than ten years in prison, and his whole body relaxed immediately, tears streaming down his face.

(End of this chapter)