Lawyer

Chapter 539 Debt Dispute
"Lawyer Fang, what do you think?" Zhou Shen's female assistant asked.

"I agree with Lawyer Sun's point of view." Fang Yi said after thinking for a while.

Lawyer Zhao and Lawyer Wang showed puzzled eyes, a little unconvinced in their hearts, waiting for Fang Yi to explain.

Lawyer Sun was a little surprised and excited. He didn't expect Fang Yi to agree with his opinion, and he felt like seeing each other late.

"In my opinion, 'debts not protected by law' can be divided into 'illegal debts' and 'illegal debts', both of which belong to the act of the Supreme People's Court on Claiming Debts Not Protected by Law and Illegally Detaining Others." Debts that are not protected by the law as stipulated in the Interpretation of How to Criminalize Issues.

Illegal debts are debts generated by creditors using means prohibited by laws and regulations, and their generation is based on violations of laws and regulations, such as usury, gambling, etc.

Illegal debts are derived from criminal acts expressly prohibited by the Criminal Law, such as the debts generated between criminals due to uneven distribution of spoils in this case.

In this case, Gao Qiyuan, the defendant, asked for a "share" of the ransom that was embezzled by his co-accused, which is a debt that is not protected by the law as stipulated in the above judicial interpretation. Therefore, the procuratorate classified this case as the crime of illegal detention. I think there is no problem. "Fang Yi said.

"Lawyer Fang, I have no objection to the illegal debts and illegal debts you mentioned. I have also read the judicial interpretation of the Supreme Court you mentioned just now, but it uses enumeration to define that 'the law does not protect debts', such as usury, gambling debts, etc.

And the 'debt of illegality' you mentioned just now is not within the scope of the enumeration, so I think it is a bit far-fetched to characterize this case as the crime of illegal detention. Lawyer Zhao took the lead in speaking.

"Well, there is some truth to what you said, but I think that the 'debt not protected by law' mentioned in the judicial interpretation focuses on the authenticity of the 'debt' rather than the nature, name or cause of the debt, etc.
Judging from the original intention of the judicial interpretation, the scope of creditor's rights not protected by the law includes, but is not limited to, illegal debts such as gambling debts and usury listed in the judicial interpretation, as well as debts arising from crimes.

In this case, Gao Qiyuan’s purpose is to collect debts, which is different from the purpose of extorting money in the kidnapping case. The focus is on whether there is a debt, not whether the debt is illegal or illegal.

Whether the perpetrator demands a debt, whether the debt is legal, illegal, or illegal, and illegally detains others, the infringement on the rights and interests of the victim is the same.

Therefore, I think that one of the main differences between the crime of debt-collection-type illegal detention and the crime of kidnapping is whether there is really a creditor-debtor relationship between the perpetrator and the victim. Whether the creditor-debtor relationship is legal is not the point. "Fang Yi explained.

"In my opinion, debt is a concept of civil law. According to the principle of "whoever claims, proves" in civil law, the defendant Gao Qiyuan was unable to fulfill the burden of proof as to whether there was a debt or whether the amount demanded exceeded the debt. Whether the creditor-debt relationship really exists. It is still difficult to classify this case as a crime of illegal detention." Lawyer Wang said.

"In my opinion, this case is a criminal case. Whether there is a creditor-debtor relationship between the defendant and the victim should be determined in accordance with the criminal law, rather than the standard of proof of the civil law. The reasons are:

First, in criminal cases, it is not advisable to shift all the burden of proof to the defendant, nor can the victim's statement be completely accepted. Whether "beyond reasonable doubt" should be used as the criterion for judging whether the creditor-debtor relationship really exists.

The reason is that the civil law implements the principle of 'whoever advocates, who proves', while the criminal law implements the principle that the public prosecutor bears the burden of proof for a crime.

In this case, if the only conclusion cannot be drawn and there is reasonable doubt, then the creditor-debtor relationship may exist, and the debt cannot be determined to be untrue or non-existent.

Second, in criminal cases, when judging whether the creditor's rights and debts really exist, one should consider the subjective state of mind of the parties at the time of the case, and whether both parties recognized the debt at that time, instead of listening to the debtor's one-sided statement afterwards.

This is because people have the psychology of seeking advantages and avoiding disadvantages. In criminal cases, the victim may be subject to criminal prosecution for truthfully stating the facts of illegal debts. Therefore, it is not realistic to require all victims to truthfully state.

Therefore, in criminal cases, the statement denied by the victim (debtor) afterwards is not enough to rule out the possibility that the creditor-debtor relationship actually exists. "Fang Yi said.

"Lawyer Fang, I think what you said has some truth. In criminal cases, the final result can only be determined after reasonable doubts have been ruled out.

So, in your opinion, in this type of criminal case, how should we judge the authenticity of the creditor's rights and debts?Or is there a possibility? " Lawyer Zhao asked.

When he was about to retire, Attorney Zhao no longer studied business. He worked in the second line for several years, and later came to Beijing to work as a lawyer. Researched.

Fang Yize is different. He has been on the front line of business. He has been researching and learning many new theories, adjudicative standards and directions. He will not only study new legal theories, but also study the thinking of judges and prosecutors.

As the so-called major selection is good, every day is the college entrance examination.As a legal person, if you don’t study, you will sail against the current, and you will soon be thrown out by your peers. Not only will you be looked down upon by judges and prosecutors in court, but even the parties involved will complain.

"Lawyer Zhao is right. I have studied it for a long time and read many cases, but to be honest, I still don't understand it too well." Lawyer Sun said sincerely.

"I have summed up a little bit of experience, it may not be right, welcome colleagues here to correct me.

As for the authenticity of creditor's rights and debts in such cases, I think it can be judged from the following three aspects:
[-]. Investigate whether there is an economic basis or other relationship between the two parties that triggers the dispute over creditor's rights and debts.

[-]. Whether there is evidence to prove the existence of 'illegal debt'.

[-]. Whether the criminal means adopted by the defendant and the purpose it wants to achieve are in line with common sense.

In this case, whether the creditor-debtor relationship really exists, although there is no direct evidence, such as IOUs, contracts and other documents, there are reasonable doubts:
First of all, according to the evidence in the case, the defendant Gao Qiyuan sent letters to Cao Wenxue several times asking for a share. There is no economic relationship, only kidnapping outsiders in partnership.

Secondly, according to the confession of the defendant Gao Qiyuan, the two had discussed the distribution ratio of the ransom before kidnapping the outsider.If there is no benefit, what is the purpose of Gao Qiyuan helping Cao Wenxue kidnap the outsider?can not explain.

In the end, the criminal method that the defendant Gao Qi intended to adopt was to put the victim in a warehouse and force the victim to pay back the money, and he would not let him go if he did not pay back the money, which was equivalent to the purpose of debt collection.

To sum up, the possibility that the defendant Gao Qiyuan attempted to kidnap the victim Cao Wenxue in order to demand illegal debts cannot be ruled out. "Fang Yi said.

(End of this chapter)