Lawyer

Chapter 540 Copied!
"Just now we have been discussing the authenticity of the debt, I have a question, I would like to ask everyone.

If there is actually no debt between the two parties, but the perpetrator mistakenly believes that there is a creditor-debtor relationship between the two parties, even if the act of detention for debt collection is implemented, does it not constitute the crime of illegal detention?Because there is really no real creditor-debtor relationship between the two parties.

is that so?I don't know if I understand it right. Lawyer Sun asked suddenly.

"I don't think it can be understood in this way. From the analysis of the constituent elements of a crime, each crime has four elements: the subject of the crime, the subjective aspect of the crime, the object of the crime, and the objective aspect of the crime. Only focus on objective facts, and Ignoring the subjective purpose. This is definitely not appropriate." Lawyer Zhao laughed.

"I agree with Lawyer Zhao's opinion.

As far as this case is concerned, whether it is asking for illegal debts or asking for illegal debts, it should meet the subjective and objective elements of the crime of illegal detention.

In my opinion, in such cases, in addition to reviewing and excluding the fact that the debt is fabricated, the defendant's subjective purpose should also be examined while examining the authenticity of the debt.

Whether the perpetrator constitutes a crime can only be analyzed based on the theory of crime constitution and the principle of the unity of subjectivity and objectivity, that is, whether the perpetrator’s thoughts and practices are consistent, which is also the key point to distinguish this crime from another crime.

As far as debt collection-type illegal detention is concerned, I think that even if there is no actual creditor-debtor relationship between the two parties, or the creditor-debtor relationship is not clear, it is just that the defendant has identified the wrong person, and even took it for granted.However, as long as the defendant subjectively believes that the other party has defaulted on his debts, detains the victim, and the recovery of the arrears does not obviously exceed the amount of the debt, since there is no purpose of illegal possession, it should also be deemed a crime of illegal detention.

Specifically in this case, the evidence on file proves that the defendant Gao Qiyuan clearly pointed at the victim, Cao Wenxue, to embezzle his share of the ransom at the time of the premeditation, and the evidence on file cannot prove that his intention to commit the crime has subsequently changed. Both the behavior and the subjective purpose are to recover the 'debt', so his behavior constitutes the crime of illegal detention.

Although the Supreme People's Court has expanded the crime of debt-collection-type illegal detention from asking for legal debts to asking for "debts not protected by law" in the way of judicial interpretation.However, there are still many controversies about how to determine this special debt-collection-type illegal detention crime in judicial practice.

I have checked relevant cases. As far as debt collection-type illegal detention cases are concerned, the verdicts of different courts are not the same.So what I said is just for your reference. "Fang Yi said.

Fang Yi didn't dare to trust him. Even if the president of the Provincial High Court came, he wouldn't dare to say that all the courts in the province would give the same judgment on the crime of debt collection-type illegal detention. understanding and professional competence.Lawyers do sometimes need a little luck to handle a case, as all the litigators here have experienced.

Zhou Shen invited Fang Yi to dinner at noon, accompanied by three lawyers, and everyone talked about the current judicial situation and complained a lot.

Then Zhou Shen personally sent Fang Yi to the train station.

"Junior brother, do you have any idea of ​​coming to the capital?" Zhou Shen and Fang Yi sat side by side in the back row of the Mercedes-Benz, tilted their heads and looked at Fang Yi with a smile.

"You know my situation, I'm afraid I won't be able to come to the capital for a while." Fang Yi declined politely.

Now that his son is going to take the high school entrance examination, his father is at home, and Fang Yi has just started his career in the city. To be honest, he really doesn't want to come to the capital.

"Alright, I need your help in the future if I have something to do here." Zhou Shen smiled and took out a big red envelope and stuffed it into Fang Yi's bag.

"Senior brother, you're out of touch now." Fang Yi saw him say so.

"We agreed before that there is no labor fee, but there must be a red envelope. I can't let you run away for nothing, and you must accept it." Zhou Shen insisted.

After sending Fang Yi away, lawyer Zhao and the three returned to the meeting room.

"How is Gao Qiyuan's case plan decided?" Attorney Sun looked at Attorney Zhao and Attorney Wang and asked.

He has the least qualifications among the three, and he is assisting the two in handling the case, so it is his big idea to ask Zhao and Wang to take it, and of course Zhao and Wang should also bear the risk.

"I think it should be defended according to the lesser crime. I think what Lawyer Fang said today makes sense." Lawyer Zhao thought for a while.

"I think no matter whether what lawyer Fang says is right or wrong, there is only one final test standard, and that is the court's judgment. Although sometimes the court's judgment may not necessarily convince everyone." Lawyer Wang was a little unconvinced, but it was inconvenient show up.

"Well, how about this, let's come up with a lesser defense plan, but we must explain the risks clearly. After all, the defendant's behavior is an attempted crime. Even if he is found to be a crime of illegal detention, he can still be given a lighter or mitigated punishment compared to an accomplished crime.

If the court does not determine the crime of illegal detention, but determines that it constitutes other crimes, such as attempted kidnapping, it will be even more unfavorable to the defendant. " Lawyer Zhao said.

"Well, I think it's feasible." Lawyer Wang said.

"What if the court finds that there is no crime?" Attorney Sun asked.

Lawyer Wang glanced at Lawyer Zhao, then looked at him: "In that case... the defendant has copied it!"

Facts have proved that the decision of the three lawyers Zhao is correct. Gao Qiyuan's case was finally found by the court as a crime of illegal detention. Gao Qiyuan was sentenced to one year's imprisonment for attempted crime.

The reason for the court’s judgment is the same as what Fang Yi said before. It believed that the defendant Gao Qiyuan used the means of detention to ask for the proceeds of the crime. The money he asked for was a “debt not protected by the law”. According to the Interpretation on How to Convict the Illegal Detention of Others for Unprotected Debts, Gao Qiyuan's behavior should be classified as the crime of illegal detention.

Gao Qiyuan's criminal case impressed Zhao lawyers and Fang Yi deeply. When the three talked about the case with their colleagues, because of Zhou Shen, they dared not attribute all the credit to themselves, and invisibly promoted Fang Yi.Of course, this is all something later, Fang Yi didn't know about it.

In the evening, just as Fang Yi and Xiao Zhi came home, Yunmei's phone rang.

"Mr. Yun, what's the matter?" Fang Yi asked after answering the phone.

"Lawyer Fang, are you at the law firm tomorrow morning?" Yunmei asked.

"At the law firm, there are no arrangements for now." Fang Yi said.

"We have two tea artisans in our tea house. One of them, Wu Meiqin, has a younger sister who was arrested some time ago. She just called me. If it's convenient for you tomorrow morning, I'll let her go to you and consult her sister. matter." Yunmei said.

"No problem. You ask her to call me before she comes tomorrow morning." After Fang Yi finished speaking, he said a few more polite words and hung up the phone.

"Son, what do you want for dinner?" Fang Yi asked towards the small bedroom.

……

(End of this chapter)