Research On The Identification Of Debt-Demanding Illegal Detention

With the vigorous development of market economy,private lending has become more and more frequent,resulting in endless disputes over creditor’s rights and debts.In the case that there is no way to resort to public power and seek private relief,some creditors who have no way to claim debts often go to extremes,and detain or detain the debtor or the third party to force them to repay their debts.Similar behaviors have gone beyond the boundaries of legal self-help behavior and are in line with the provisions of the crime of illegal detention of "claiming debts" in the third paragraph of Article 238 of the Criminal Law of China.Its behavior itself will infringe on the victim’s personal rights,but also point to asking for property and property interests,which will lead to theoretical and practical problems such as the determination of the boundary between it and kidnapping crime.Taking this theme as the breakthrough point,this paper discusses the judicial disputes on the qualitative behavior of the illegal detention case of debt-demanding,and discusses the dispute solution with the theoretical point of view.At the same time,it analyzes the constitutive elements of this crime and that crime theoretically,and discusses the determination of their joint crime with the theoretical dispute,in order to understand all kinds of situations in the determination of this crime more comprehensively,which can be beneficial to the accurate conviction and sentencing in judicial practice.This paper consists of three parts: introduction,text and conclusion,in which the text is divided into the following four chapters:The first chapter mainly discusses the judicial disputes on the nature of illegal detention of debt-demanding type,including the judgment of the nature of debt,the determination of the amount of debt,the investigation of the authenticity of debt and the definition of the object of debt-demanding.On this basis,this paper points out the reasons for the confusion in the characterization of related behaviors in judicial practice,including three factors: subjectivization of qualitative standards,excessive consideration of the victim’s fault,and avoidance and application of kidnapping crime.The content of the second chapter is mainly presented in the form of countermeasures,and specific solutions are put forward for qualitative problems in practice.It is necessary to clarify the qualitative standard of illegal detention for debt,emphasize the relationship between creditor’s rights and debts as an important dimension and attach importance to the key element of behavior means.To make clear the judgment of the elements of "debt",the "debt" in this crime should exclude the illegal debt generated by illegal crimes;Clearly define the nature of asking for "excess" debt and the criteria for determining "excess";Clarify the investigation basis for the authenticity of debt,and analyze the behavior characterization of demanding debts that are difficult to find out and imaginary debts;Clarify the scope of the crime and make a specific determination of the different situations when the debtor intervenes in the third party.The third chapter mainly presents the discrimination between the crime of illegal detention of debt demand and other crimes.Firstly,the relationship between illegal detention for debt and kidnapping crime is discussed,which mainly focuses on the differences in behavior means and degree of violence between them.It is considered that the implementation of illegal detention for debt does not include kidnapping and its degree of violence is lower than kidnapping.Secondly,there is the relationship between the crime of illegal detention of demanding debts and the crime of collecting illegal debts.There are overlap and differences between them in terms of protection interests and behavior means,and there is often a competing relationship in specific application.The fourth chapter mainly discusses the joint crime of debt-demanding illegal detention.The view of "some crimes are common" is adopted in the determination of joint crime,and the special situation of joint crime of this crime is analyzed on this basis: in the case of "cheating for debt collection",the subjective and intentional content of helping debt collectors should be inferred according to objective behavior;In the case of "employing people to ask for debts",the employer may constitute an instigator,an organizer,an offender,etc.In the judgment of whether the employee’s behavior constitutes an over-limit behavior,the main concern is whether the employer has the possibility to foresee the over-limit behavior,and accordingly,it is determined separately.