Lawyer's character

On Wednesday, the week before the October 1 holiday, the Intermediate People's Court held a public hearing on the Ding Quan kidnapping case. Ding Quan's aunt Jin Yan and his wife Xiaojuan were sitting in the gallery, nervously listening to the prosecutor read out the indictment.

“...This court believes that the defendant Ding Quan breached the contract during the process of purchasing the equity of the victim Zhou Wang’s auto repair shop and has no right to request the return of the deposit. The deposit paid should belong to Zhou Wang.

The defendant Ding Quan kidnapped others and demanded the money, which is an act of kidnapping and extortion. His behavior has violated the provisions of Article 239 of the Criminal Law of the People's Republic of China. The criminal facts are clear and the evidence is reliable and sufficient. He should be prosecuted for the crime of kidnapping. its criminal liability.

According to the provisions of Article 176 of the Criminal Procedure Law of the People's Republic of China, if a public prosecution is instituted, please be sentenced in accordance with the law. Judge President, the indictment has been read out. "said the male prosecutor sitting at the head of the prosecutor's table.

"Defendant Ding Quan, did you hear clearly the indictment just read out by the prosecutor? What crimes are you accused of? Do you have any objection to the criminal facts accused of you in the indictment? Do you have any objections?" asked the presiding judge.

"I have no objection to the facts of the accusation. I did rob Zhou Wang's grandson, but he owed me 200,000 yuan. I took the child away to get the 200,000 yuan. It was not kidnapping, so I have no objection to the accusation. The crime is not accepted." Ding Quan said.

He has already taken the risk, and everything that should be arranged at home has been arranged anyway.

"The public prosecutor can interrogate the defendant regarding the criminal facts charged in the indictment," the presiding judge said.

"Okay, presiding judge." The prosecutor looked at Ding Quan and said, "Defendant Ding Quan, did you know the victim Zhou Wang before?"

"I don't know." Ding Quan said.

"How did you know that the victim sold his shares in the auto repair shop?" the prosecutor asked.

"I heard what others said, and then I went to him to talk about buying equity, and we signed a sales contract." Ding Quan said.

"Have you paid any money after signing the equity sales contract?" the prosecutor asked.

"Yes, I first paid a deposit of 100,000 yuan. Later, I went to him to discuss the deferred payment and gave him another 100,000 yuan in equity transfer money," Ding Quan said.

"Did you both go through the equity transfer procedures later?" the prosecutor asked.

"No. I don't have the money to pay the remaining equity transfer fee. He later sold the equity to others." Ding Quan said.

"What did you do with it later? Regarding the 200,000 yuan paid previously." the prosecutor asked.

"I went to negotiate with Zhou Wang and wanted to get the money back, but he wouldn't give it to me," Ding Quan said.

"What's the reason he didn't give you the money?" the prosecutor asked.

"He said that I breached the contract and the deposit would not be refunded. Later, I found the middleman Zhao Bao to make peace with me, and he agreed to refund me 100,000 yuan," said Ding Quan.

"Did the victim Zhou Wang return 100,000 yuan to you?" the prosecutor asked.

"Instead of returning it to me, Zhou Wang returned the money to the middleman Zhao Bao. I only found out after he kidnapped Zhou Wang's grandson," Ding Quan said.

"Why did you kidnap the grandson of the victim Zhou Wang?" the prosecutor asked.

"Because I want back the 200,000 yuan I paid before, but Zhou Wang won't give it to me," Ding Quan said.

"Did Zhou Wang give you money later? After you kidnapped his grandson." the prosecutor asked.

"Yes, because he paid Zhao Bao 100,000 yuan, so I later released his grandson for only 100,000 yuan," Ding Quan said.

"Presiding judge, we have finished asking questions," the prosecutor said.

"Can the defendant's defender ask questions to the defendant?" the presiding judge asked.

"Defendant Ding Quan, have you ever sued the victim in court and demanded the 200,000 yuan that was previously paid to the victim?" Fang Yi asked.

"There is no prosecution." Ding Quan said.

"You kidnapped the victim's grandson, why do you want 200,000 yuan? Why not 300,000 or 500,000 yuan?" Fang Yi asked this question because he wanted the judge to deepen his understanding of the amount of money demanded for "kidnapping" and what Ding Quan had previously paid. The relationship between the amount of money paid to the victim.

"Because I only gave Zhou Wang 200,000 yuan, of which 100,000 yuan was the deposit, and the remaining 100,000 yuan was the equity transfer fee." Ding Quan said.

"Presiding judge, the defender has finished asking questions." Fang Yi looked at the presiding judge and said.

…

“The facts of this case have been clearly investigated, the court investigation has ended, and now the court debate has begun. The court debate mainly revolves around the disputed facts that have not been certified by the court and the issue of how the law should be applied based on the facts.

The prosecutor will speak first. "The chief judge said.

"Presiding Judge, Judge: The prosecutor believes that defendant Ding Quan's behavior constitutes the crime of kidnapping. The reasons are as follows:

1. The defendant Ding Quan breached the contract first during the performance of the equity sales contract and had no right to claim back the deposit. Part of the 200,000 yuan demanded by the defendant was not a legal creditor's right and had the intention of blackmail, which was inconsistent with Article 1 of the Criminal Law. The constituent elements of the crime of illegal detention specified in paragraph 3 of Article 238.

2. The hostage kidnapped by the defendant was not the counterparty in the equity sale contract, but the grandson of the counterparty who had no fault whatsoever.

In summary, the prosecutor believes that the defendant kidnapped others and demanded illegal debts, which was an act of kidnapping and extortion, and he should be held criminally responsible for the crime of kidnapping. It is recommended that the defendant be sentenced to fifteen years in prison. complete. "The prosecutor said.

"The defendant Ding Quan will defend himself," the presiding judge said.

"I didn't kidnap Zhou Wang's grandson. I just want my money back. I'm not kidnapping..." Ding Quan argued vigorously.

"The defendant's defender expressed his defense opinion," the presiding judge said.

"Presiding Judge, Judge: The defender believes that the defendant's criminal purpose is essentially to extort debts, not to extort property, which complies with the provisions of Article 238, Paragraph 3 of the Criminal Law, and constitutes the crime of illegal detention. The reasons are as follows :

According to the provisions of Article 238, Paragraph 3 of the Criminal Law, illegally detaining and detaining others for the purpose of extorting debts is the crime of illegal detention for extorting debts.

According to Article 239 of the Criminal Law, kidnapping others or stealing infants and children for the purpose of extorting property is a crime of extortion-type kidnapping.

According to the above legal provisions, it can be seen that the main difference between the crime of illegal detention and the crime of kidnapping lies in the different criminal purposes of the perpetrators. The crime of extortion-type kidnapping is for the purpose of extorting property, while the crime of debt-collection type illegal detention is for the purpose of extorting debts.

In other words, in the crime of kidnapping, there is generally no creditor-debt relationship between the kidnapper and the victim. In the crime of debt collection-type illegal detention, there is a creditor-debt relationship between the perpetrator and the detainee.

According to the "Interpretation of the Supreme People's Court on How to Convict the Act of Extorting Debts Not Protected by the Law and Illegal Detention of Others", if the actor illegally detains or detains others to obtain debts such as loan sharks and gambling debts that are not protected by the law, he shall also be punished. It should be treated as illegal detention and cannot be classified as kidnapping.

It can be seen from this that the ‘debt’s rights’ in the crime of debt collection-type illegal detention can be legal claims or illegal claims (such as gambling debts, loan sharks, etc.), but they should be limited to the amount of the debt.

In other words, even if there is a real and legal creditor-debt relationship between the perpetrator and the victim, if the amount of ransom demanded by the perpetrator far exceeds the amount of the creditor's rights and debts, then the perpetrator's criminal purpose is no longer limited to extorting debts. , and at the same time has the purpose of extorting property, it should be handled in accordance with the legal application principle of imaginary concurrence of multiple crimes committed by one act, that is, if one of the crimes is chosen to be punished, the crime of kidnapping should be convicted and sentenced.

Based on the legal provisions and interpretations of the appeal, judging from the facts of this case, defendant Ding Quan’s purpose was to collect debts rather than extort property, and therefore constituted the crime of illegal detention. details as follows:

First, the defendant Ding Quan in this case did not actually obtain the equity of Zhouwang Auto Repair Factory. Without the defendant Ding Quan clearly giving up the purchase of equity, Zhou Wang transferred the equity of the auto repair shop to others, thus As a result, the defendant insisted on requiring the victim to return the 200,000 yuan paid. This is a normal psychological reaction of ordinary people. Under such circumstances, it is inappropriate to require a defendant who has not systematically studied the law to accurately foresee that his request may not be supported by the law.

Second, when there is a contractual dispute between the two parties, before the dispute is heard by the court, the disputed rights and obligations between the two parties are in an unstable state and have not yet been determined. Under such circumstances, it is also inappropriate to determine that the defendant cannot claim for the return of NT$200,000.

Third, generally speaking, civil behavior is a kind of autonomous behavior of the parties. As long as the intentions of both parties are truly consistent, the law will generally not interfere. Under such circumstances, it is also inappropriate to determine that the defendant in this case cannot require the victim to return 200,000 yuan.

Defendant Ding Quan in this case illegally detained the victim's grandson, in essence, for the purpose of claiming a "debt" of 200,000 yuan. Although the above debt may not be supported by the law, the defendant had in mind when he carried out the illegal detention. It is indeed believed that this kind of 'debt' is objective and should exist, and in fact it has been claiming the above-mentioned claims, and the amount requested does not exceed the scope of 200,000 yuan.

In addition, the defendant in this case initially requested a refund of 200,000 yuan, but after learning that the victim had handed over 100,000 yuan to the intermediary Zhao Bao, he immediately changed the requested amount into the remaining 100,000 yuan. It can be seen that the defendant Ding Quan never exceeded the debt range of 200,000 yuan from beginning to end, and had no intention of extorting property.

To sum up, the defender believes that although the defendant Ding Quan in this case extorted property by kidnapping and detaining others, his behavior was driven by the purpose of extorting 'debts'. In addition to requiring the victim to return a debt of 200,000 yuan, , did not extort other money, so his behavior did not constitute the crime of kidnapping, but should be charged with the crime of illegal detention. complete. "Fang Yi said.

"The prosecutor can respond to the defender's defense opinions," the presiding judge said.

“In response to the defense counsel’s defense, the prosecutor mainly expressed the following views:

The public prosecutor believes that the object of the crime of illegal detention for debt collection should be specific, that is, the defendant can only detain the party himself with whom he has a creditor and debt relationship, but cannot arbitrarily detain people unrelated to the case, including relatives of the parties, etc., and thereby Requesting debts from the party with whom he has a creditor-debt relationship, otherwise infringing upon the personal freedom of others who are not at fault, should be punished as a crime of extortion-type kidnapping.

In this case, the defendant detained the victim's grandson, and the detained person exceeded the scope of a specific person (Zhou Wang), because we believe that the defendant's behavior constituted the crime of kidnapping. complete. "The prosecutor said.

"The defender can respond to the prosecutor's opinions." the presiding judge said.

“Based on the prosecutor’s defense opinions and response, the defender issued the following defense opinions:

The defender believes that in the crime of illegal detention for debt collection, the detainee selected by the creditor is generally the party himself who has a creditor-debt relationship with him. But this does not mean that the target of the crime of illegal detention for debt collection can only be the party himself who has a creditor-debt relationship with the creditor. The reasons are as follows:

1. The currently valid laws do not clearly restrict the “other person” in “unlawfully detaining or detaining another person for the purpose of extorting a debt” must be the debtor himself who has a creditor-debt relationship with the creditor.

2. In judicial practice, if the creditor cannot collect the debt due to the debtor's avoidance or other reasons, the creditor may choose to detain the debtor's relatives, especially his young children, and use this to collect the debt from the debtor himself.

The reason is that the debtor has a specific relationship with his relatives and children, and the creditor can use it as a blackmail to pursue the purpose of pursuing his creditor's rights.

In summary, limiting the object of the crime of illegal detention for debt collection to the debtor himself who has a creditor-debt relationship with the creditor, and treating this as the difference between the crime of illegal detention for debt collection and the crime of extortion-type kidnapping, is neither realistic nor unreasonable. Legal basis. complete. "Fang Yi said.

…

"This case has been reviewed by the collegial panel and a judgment has been formed. Based on the opinions of the prosecution and defense, combined with the focus of the dispute in this case, and based on the facts and evidence of this case, this court made the following comments:

...The defendant Ding Quan detained the victim's grandson by means of seizure when he repeatedly asked for money without hope. The defendant's criminal purpose in this case was only to recover the prepaid equity transfer money and deposit, and did not make any additional extortion demands; and the defendant's infringement target was also specific, that is, Zhou Wang's grandson with whom he had a business relationship. .

Although the defendant resorted to kidnapping others, his subjective purpose was not to extort property but to collect debts, so he should still be punished with the crime of illegal detention.

Before the occurrence of this case, the dispute over the equity purchase and sale contract had not been heard by the people's court or mediated by the relevant authorities. The disputed rights and obligations between the buyer and seller had not yet been confirmed and realized in accordance with the law, and the dispute still existed. The money demanded by the defendant included both the deposit for purchasing the equity and the advance payment for equity transfer.

The public prosecutor's office argued that the defendant breached the contract and had no right to demand the return of the deposit. He kidnapped others to demand the money, which constituted extortion. His behavior should be charged with kidnapping. This qualitative opinion is inappropriate and will not be supported.

The defense opinion put forward by the defendant in this case and his defender that the defendant kidnapped others for the purpose of collecting debts and should be convicted and sentenced for illegal detention is consistent with the actual situation of this case and shall be adopted.

In accordance with the provisions of paragraphs 1 and 3 of Article 238 of the Criminal Law of the People's Republic of China, the verdict is that the defendant Ding Quan was guilty of illegal detention and sentenced to three years in prison. "The presiding judge pronounced the verdict.

After hearing the presiding judge's verdict, Ding Quan's eyes widened. He had been mentally prepared to be sentenced to more than ten years in prison, but he suddenly relaxed and shed tears.