Debt Of Kidnappig And The Crime Of Illegal Detention

In recent years,with the rapid development of China’s market economy,various civil debt disputes have increased,and cases of illegal detention and seizure of others for the purpose of recovering legal or illegal debt have also increased,and the nature of such debt-related detention cases has become qualitative.The question of the alternative application of the crime of illegal detention and kidnapping is often involved,leading to judicial chaos in trial practice.Article 238,paragraph 3 of the Criminal Law stipulates that in order to obtain debts for illegal seizure and detention of others,the crime of illegal detention shall be considered.Judicial interpretations will require debts not protected by laws such as loan sharks,gambling debts,etc.to be included in the scope of debt claims and expand the scope of illegal detention.However,in judicial practice,some activists not only illegally deprive the victim of his personal freedom in order to obtain debt,but also threaten to kill or harm the victim and obtain property from the victim’s family.From the perspective of behavioral means,there are very many crimes against kidnapping.With a high degree of similarity,it is easy to place the distinction between the two crimes on the determination of the nature of property,that is,if it is a debt claiming act,it means that the perpetrator did not use illegal possession for the purpose of constituting an illegal detention.If there is no debt,that is the purpose of extortion of property,constitute the crime of kidnapping,which will appear due to the existence of the debt,so that the two crimes have a huge difference in the phenomenon of punishment.Although there seems to be a clear distinction between the two crimes in theory,the determination of the case of detention of debts in judicial practice is inconsistent.The phenomenon of differential judgment in the same case is more prominent.Especially when the two crimes have similar behavioral means,defining whether or not the request is a debt determines the nature of the case.The judicial interpretation provision in 2000 identified the detention of hostages as detaining illegal loans such as usury loans and gambling debts as illegal detention,and expanded the scope of“supplying debts”.In the practice of trials,the "exposure of debts" has been explained with extreme expansion.For example,after a male and female friend broke up,hewas detained by a deceptive pyramid organization after detaining the other party’s request for break-up fees,and was detained on the “online” asking for “occupation fee”,entrusting others to make financial losses,claiming losses and demanding a loan that significantly exceeded the principal of usury.,asking for no reason,subjectively claiming to be a "debt",demanding an indefinite state or unreasonable debt,and so on,are all found to be "debts" in illegal detention in trial practice,thereby excluding the abductions.The application of sin is regarded as an illegal detention.The causes of this chaos are many.One is the legal punishment of kidnapping crimes,which makes the crime of illegal detention expanded.The second is the lack of standardized guidelines for trial practice and the inability to exhaust the complex types of debt.The enumeration has led to deviations in the application of the law,which has affected the accuracy of the case;the third is the influence of sentencing in the practice of anti-spelling crimes in practice.The phenomenon of anti-establishment of crimes by using sentencing was chosen.That is,priority should be given to the appropriate penalty based on the circumstances of the case and the crime should be selected.It is necessary to strictly limit the scope of debt claims,clarify the specific reference of the debt in the legislation,and clarify and unify the contents of the debts,thus correcting the case of delinquent debt cases in order to apply the lighter sentences of unlawful detention.Avoid the practice of kidnapping.At the same time,reducing the legal punishment for kidnapping crimes,first reducing the starting point for kidnapping offences,secondly arranging corresponding gradients for kidnapping offences,and increasing the punishments within the gradients so as to improve the applicable conditions of legal punishment and achieve a balanced sentence.effect.It is also necessary to improve the contents of the relevant guiding cases in a timely manner to standardize,clarify the distinction between this crime and other crimes in the case of a debt-determination case,and make a clear and concise interpretation of the previously controversial part.