Lawyer's character

"We have been discussing the authenticity of debt just now. I have a question and I would like to ask everyone for advice.

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

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

"I don't think it can be understood this way. Analyzing the elements of crime, every 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. We only focus on the objective facts, and Ignoring the subjective purpose. This is definitely inappropriate." Lawyer Zhao said with a smile.

“I agree with Lawyer Zhao’s opinion.

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

I believe that in such cases, in addition to examining and excluding the possibility that the debt was made out of nothing, the subjective purpose of the defendant 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 composition and the principle of unity of subjectivity and objectivity, that is, whether the perpetrator's thoughts and actions are consistent. This 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-debt relationship between the two parties, or the creditor-debt relationship is unclear, the defendant just misidentified the wrong person, and even took it for granted that they were connected. However, as long as the defendant subjectively believes that the other party has defaulted on his debt and detains the victim, and the amount of debt recovered does not obviously exceed the amount of the debt, since there is no purpose of illegal possession, it should also be deemed as illegal detention.

Specifically in this case, the evidence in the case proves that the defendant Gao Qiyuan clearly pointed at the victim Cao Wenxu to embezzle his share of the ransom when he premeditated it, and the evidence in the case cannot prove that his intention to commit the crime has subsequently changed. His objective Both the behavior and the subjective purpose were to recover 'debts', so his behavior constituted the crime of illegal detention.

Although the Supreme People's Court extended the crime of illegal detention for debt collection from the collection of legal debts to the collection of "debts not protected by law" through judicial interpretation. However, in judicial practice, there is still a lot of controversy over how to identify this special crime of illegal detention for debt collection.

I have checked relevant cases and found that in cases of illegal detention for debt collection, the verdicts in different courts are different. So what I said is for your reference only. "Fang Yi said.

Fang Yike did not dare to trust anyone. Even if the president of the Provincial High Court came, he would not dare to say that all courts in the province would have the same verdict on the crime of illegal detention for debt collection. This is related to the specific case, and even more to the presiding judge. understanding is related to professional ability. Lawyers sometimes do need a bit of luck to handle cases, as several litigation lawyers here have experienced.

At noon, Zhou Shen invited Fang Yi to dinner, accompanied by three lawyers. Everyone discussed the current situation of the judiciary and made a lot of complaints.

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

"Junior brother, do you have any ideas about coming to the capital for development?" Zhou Shen and Fang Yi sat side by side in the back row of the Mercedes-Benz, tilting their heads and looking at Fang Yi with a smile.

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

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

"That's fine. If I have something to ask you in the future, please help me." Zhou Shen smiled and took out a big red envelope and stuffed it into Fang Yi's bag.

"Senior brother, you are out of sight." Fang Yi said when he saw him.

"We agreed before that there is no labor fee, but there must be a red envelope. I can't let you run away in vain, you must accept it." Zhou Shen insisted.

After sending Fang Yi away, Lawyer Zhao and the other three returned to the conference room.

"How to decide on Gao Qiyuan's case plan?" Lawyer Sun looked at Lawyer Zhao and Lawyer Wang and asked.

He is the least senior among the three, and he assists the two in handling the case, so Zhao and Wang have to take the big ideas, and of course the risks must also be borne by Zhao and Wang.

"I think the defense should be based on the lesser crime. I think what Lawyer Fang said today makes sense." Lawyer Zhao thought for a while and said.

"I think no matter what Lawyer Fang said 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 felt a little unconvinced, but it was inconvenient. Show it.

"Well, let's come up with a lighter defense plan, but the risks must be explained clearly. After all, the defendant's behavior is an attempted crime. Even if he is found to be illegal detention, he can still be given a lighter or reduced punishment than a completed crime.

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

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

"What if the court determines that it does not constitute a crime?" Lawyer Sun asked.

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

Facts have proved that the decision of the three lawyers Zhao was correct. Gao Qiyuan's case was eventually determined by the court to be illegal detention. Gao Qiyuan was sentenced to one year in prison for attempted crime.

The court's reasoning was the same as what Fang Yi said before. It held that the defendant Gao Qiyuan used detention methods to demand the proceeds of crime, and the money he demanded was a "debt not protected by the law." According to the Interpretation on How to Convict the Behavior of Illegal Detention of Others for Unprotected Debt, Gao Qiyuan’s behavior should be classified as the crime of illegal detention.

Gao Qiyuan's criminal case impressed the three lawyers Zhao and Fang Yi deeply. When the three of them talked about the case with their colleagues, they did not dare to take all the credit for themselves because of Zhou Shen, and invisibly promoted Fang Yi. Of course, this was all a later story, and Fang Yi didn’t know.

In the evening, as soon as Fang Yi took Xiao Zhi home, Yun Mei's call came.

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

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

"There are no arrangements at the law firm for the time being." Fang Yi said.

"We have two tea masters in our tea house. The sister of one of the tea masters named Wu Meiqin was arrested some time ago. She just called me. If it is convenient for you tomorrow morning, I will ask her to come to you and consult her sister. It's something." Yunmei said.

"No problem. Ask her to call me before she comes over tomorrow morning." After Fang Yi finished speaking, he hung up the phone after saying a few more polite words.

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

…