Lawyer's character

"Lawyer Fang, what do you think?" Zhou Shen's female assistant asked.

"I agree with Lawyer Sun's point of view." Fang Yi thought for a moment and said.

Lawyer Zhao and Lawyer Wang looked puzzled and felt a little unconvinced, waiting for Fang Yi to explain.

Lawyer Sun was a little surprised and excited. He didn't expect that Fang Yi would agree with his opinion, and he felt like he was too late to meet him.

"I believe that 'debts not protected by law' can be divided into 'illegal debts' and 'illegal debts', and both of these debts fall under the "Supreme People's Court's Regulation on the Illegal Detention of Others for Claiming Debts Not Protected by Law" Debts that are not protected by law are stipulated in "Explanation of How to Convict Issues".

Illegal debts are debts incurred by creditors using means prohibited by laws and regulations. They are generated based on violations of laws and regulations, such as loan sharking, gambling, etc.

Illegal debts originate from criminal acts expressly prohibited by the Criminal Law, such as the debts incurred among criminals due to uneven distribution of stolen goods in this case.

The defendant Gao Qiyuan in this case asked for a ‘share’ of the ransom embezzled by his co-defendant, which is a debt that is not protected by law under the above judicial interpretation. Therefore, I think there is no problem in the procuratorate’s classification of this case as illegal detention. "Fang Yi said.

"Lawyer Fang, I have no objection to the illegal debts and illegal debts you mentioned. Moreover, I have also read the judicial interpretation of the Supreme Court you mentioned just now, but it uses an enumeration method to define 'not protected by law. Debts', such as loan sharks, gambling debts, etc.

The 'illegal debts' you just mentioned are not within the scope of the enumeration, so I think it is a bit far-fetched to characterize this case as illegal detention. "Lawyer Zhao spoke first.

"Well, what you said makes sense, but I think that the focus of the 'debts not protected by law' mentioned in the judicial interpretation is the authenticity of the 'debt', rather than the nature, name or cause of the debt, etc.

Judging from the original intention of the judicial interpretation, the scope of claims not protected by the law includes but is not limited to illegal debts such as gambling debts and loan sharking listed in the judicial interpretation, as well as debts arising from crimes.

In this case, Gao Qiyuan's purpose was to collect debts, which was different from the perpetrator's purpose of extorting money in the kidnapping case. The focus was on whether there was a debt, not whether the debt was illegal or illegal.

The actor artificially demands a debt, regardless of whether the debt is legal, illegal, or illegal. The illegal detention of others will infringe the rights of the victim in the same way.

Therefore, I think one of the most important differences between the crime of illegal detention for debt collection and the crime of kidnapping is whether there is really a creditor-debt relationship between the perpetrator and the victim. As for whether the creditor-debt relationship is legal, it is not the focus. "Fang Yi explained.

"I think debt is a civil law concept. According to the principle of "who claims to provide evidence" in civil law regulations, the defendant Gao Qiyuan cannot fulfill the burden of proof on whether there is a debt or whether the amount claimed exceeds the debt, so it is impossible to determine the relationship between the two parties. Whether the creditor-debt relationship really exists. It is still difficult to classify this case as illegal detention," Lawyer Wang said.

“I believe that this case is a criminal case, and whether there really is a creditor-debt relationship between the defendant and the victim should be determined in accordance with criminal law, rather than in accordance with the standard of proof of civil law. The reason is:

First, in criminal cases, it is not appropriate to put all the burden of proof on the defendant, nor to fully accept the victim's statement. The standard for judging whether the creditor-debt relationship truly exists should be "beyond reasonable doubt."

The reason is that civil law implements the principle of "whoever claims it shall provide evidence", while criminal law implements the principle that the prosecutor bears the burden of proof for a crime.

In this case, if the only conclusion cannot be drawn and there is reasonable doubt that a creditor-debt relationship is possible, it cannot be determined that the debt is untrue and does not exist.

Second, in criminal cases, to determine whether the creditor's rights and debts truly exist, one should consider the subjective state of mind of the parties at the time of the incident and whether both parties recognized the debt at the time, and should not rely on the debtor's subsequent words.

This is because people tend to seek advantages and avoid disadvantages. In criminal cases, the victim may be criminally prosecuted for truthfully stating the facts of illegal debts, so it is unrealistic to require the victim to state everything truthfully.

Therefore, in criminal cases, the victim (debtor)’s subsequent denial statement alone is not enough to rule out the possibility that the creditor-debt relationship actually exists. "Fang Yi said.

"Lawyer Fang, I think what you said makes sense. In criminal cases, the final result must be determined only after reasonable doubt has been eliminated.

So in your opinion, how should we judge the authenticity of claims and debts in this type of criminal case? Or the possibility of existence? "Lawyer Zhao asked.

When he was about to retire, Lawyer Zhao no longer studied business and worked in the second line for several years. Later, he came to the capital to work as a lawyer. He was still resting on his laurels and paid little attention to the theories and judicial practices in the criminal field in recent years, let alone Researched.

Fang Yi is different. He has always been on the front line of business and has been constantly researching and learning about many new theories, judgment standards and directions. He will not only study new legal theories, but also study the thinking of judges and prosecutors.

As the saying goes, if you choose a major well, it’s the college entrance examination every day. As a legal practitioner, if you don't learn, you will be swimming against the current, and you will soon be thrown out by your peers. Not only will you be looked down upon by judges in court, you will be despised by prosecutors, and even the litigants will complain.

"Lawyer Zhao is right. I have studied it for a long time and read many cases, but to be honest, I still don't have a clear idea." Lawyer Sun said sincerely.

"I have summarized some experiences, which may not necessarily be correct. I welcome corrections from my colleagues here.

Regarding the authenticity of claims and debts in this type of case, I think we can judge from the following three aspects:

1. Examine whether the two parties have an economic basis or other relationship that triggers disputes over claims and debts.

2. Whether there is evidence to prove the existence of ‘illegal debt’.

3. Whether the criminal means adopted by the defendant and the purpose he wants to achieve are consistent with common sense.

In this case, although there is no direct evidence, such as documents such as IOUs and contracts, as to whether the creditor-debtor relationship actually exists, there is reasonable doubt:

First of all, according to the evidence in the case, the defendant Gao Qiyuan sent letters to Cao Wenxue many times, asking for a share of the share. Although the evidence did not mention what the share was, according to the statement of the victim Cao Wenxue, the relationship between him and the defendant He has no financial dealings and has only collaborated to kidnap people who were not involved in the crime.

Secondly, according to defendant Gao Qiyuan's confession, the two had discussed the distribution ratio of the ransom before the kidnapping case. The two of them had received a total of 5 million yuan in ransom, and he should have received 2.5 million yuan. If there is no benefit, what is Gao Qiyuan's purpose in helping Cao Wenxue kidnap outsiders? can not explain.

Finally, the defendant Gao Qi's original criminal method was to lock the victim in a warehouse and force the victim to pay back the money. If he did not pay back, he would not be released. This was equivalent to the purpose of collecting debts.

In summary, it cannot be ruled out that the defendant Gao Qi originally attempted to kidnap the victim Cao Wenxue in order to demand illegal debts. "Fang Yi said.