Unlawful Detention For Claiming Debts

It has been an indisputable fact that debts should be paid.In ancient legal system,criminal means were applied to the relief of creditor' s rights,and to a large extent,it acknowledged the validity of depriving the freedom of action of the debtor to realize private remedy.Meanwhile,there were the notorious record of “responsibility for the group” in ancient legal system,namely,the private remedy of applying punishment or endangering personal safety of the family members of the debtor was allowed.In order to protect creditor's rights to the maximum,in the ancient legal system,the nonperformance of the debt was linked with criminal liability,thus guaranteeing the interest of the creditor,and it was also conducive for maintaining social order which was based on property relationship.However,applying the method of custody to realize private remedy means that the debtor would be in extremely dangerous situation,and the right of the person was sacrificed for overprotecting property right.In addition,the act of extending individual debt liability to the family group has violated the principle of individual liability,which was extremely brutal.With the modernization of law,the concept of personal rights has been universally respected,and the act of self-help remedy for creditor's right by means of detention is no longer permitted,and the means of criminal law for the remedy of creditor's right are strictly restricted.The unlawful detention for claiming debt in criminal law is the product of the modernization of law,and it is the “relic” for the re-criticism of ancient law.But the development of the unlawful detention for claiming debt in our country has not lived up to expectation.In order to better manifest the value of personal right,reflect the modernization idea of law,we should reconsider the unlawful detention for claiming debt in criminal law in our country.In the application of the criminal law,firstly,we should distinguish between the behavior of demanding lawful debt,debt unprotected by the law and illegal debt;secondly,we should strictly restrict the scope of “others” and prevent the resurgence of “responsibility for the group”;finally,on the perfection of criminal law,additional crime of infringing creditor's rights may be considered within limits.This thesis mainly expounds the unlawful detention for claiming debts from the following four aspects:In the first part,the author introduces the ancient legal foundation and present situation of modern law of the unlawful detention for claiming debts on the theoretical level.The link of nonperformance of ancient debt with personal freedom and separation of debt performance from personal freedom of laws in various countries are expounded.In the second part,the author aims at reinterpreting the unlawful detention for claiming debts,and focuses on the analysis of relevant nature of the debt and the scope of the others.The author proves that the “debt” in this sin should be limited within the two cases: the legal debt and the debt unprotected by the law,and the “others” should be only the debtor,and in particular cases it can cover the heir to property after the death of the debtor.The third part mainly analyzes the problems of judicial determination on the unlawful detention for claiming debts in practice in our country,including the analysis and discussion about claiming debts with unknown amount,“bodyguard” debt and the joint crime of “extortion-ransom typed” kidnapping,and gives corresponding treatment suggestion.The fourth part gives the planning of governance structure of the system for unlawful detention for claiming debts in our country.Through empirical analysis on the present situation of unlawful detention for claiming debts in our country,the author proposes that additional crime of infringing creditor's rights may be considered on the legislative level.