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

"I agree with Mr. Sun." Fang Yi thought for a moment and said.

Lawyer Zhao and Lawyer Wang showed puzzlement in their eyes, and they were a little unconvinced, waiting for Fang Yi to explain.

Lawyer Sun was a little surprised and excited in his heart, he didn't expect Fang Yi to agree with his opinion, and he had a feeling of hating to see each other late.

"In my opinion, 'debts not protected by law' can be divided into 'illegal debts' and 'illegal debts', and these two debts belong to debts that are not protected by law as stipulated in the Interpretation of the Supreme People's Court on the Issue of How to Criminalize the Illegal Detention of Others for Debts Not Protected by Law.

Illegal debts are debts incurred by creditors using means prohibited by laws and regulations, and their incurrence is based on violations of laws and regulations, such as usury, gambling, etc.

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

The defendant in this case, Gao Qiyuan, demanded a 'share' of the ransom that was privately embezzled by his co-defendants, which is a debt that is not protected by law as stipulated in the above-mentioned judicial interpretation, so I don't think there is a problem with the procuratorate's characterization of this case as a crime of illegal detention. Fang Yi said.

"Lawyer Fang, I have no opinion on what you said about illegal debts and illegal debts. Moreover, I have also read the judicial interpretation of the Supreme People's Court that you just mentioned, but it uses the method of enumeration to define 'debts that are not protected by law', such as usury, gambling debts, etc.

However, the 'debt of illegality' you just mentioned is not within the scope of the list, so I think it is far-fetched to characterize this case as the crime of illegal detention. Lawyer Zhao was the first to speak.

"Well, there is some truth in what you said, but I believe that the emphasis on the 'debts not protected by law' mentioned in the judicial interpretation lies in the authenticity of the 'debts', rather than on the nature, name or cause of the debts

From the original intent of the judicial interpretation, the scope of creditor's rights that the law does not protect includes, but is not limited to, illegal debts such as gambling debts and usury 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 purpose of the perpetrator in the kidnapping case to extort money, focusing on whether there were debts, rather than whether the debts were illegal or illegal.

The perpetrator illegally detains another person in order to collect a debt, regardless of whether the debt is legal, illegal, or illegal, and illegally detains others, and the infringement of the victim's rights and interests is the same.

Therefore, I believe that one of the most important differences between the crime of illegal detention and the crime of kidnapping is whether there is really a creditor-debtor relationship between the perpetrator and the victim, and whether the creditor-debtor relationship is legal is not the point. Fang Yi explained.

"I believe that debt is a civil law concept, and according to the principle of "whoever asserts shall bear the burden of proof" in civil law, the defendant Gao Qiyuan cannot fulfill the burden of proof on whether there is a debt and whether the amount claimed exceeds the debt, so it is impossible to determine whether the creditor's rights and debts relationship between the two parties really exists. This case is still difficult to characterize as the crime of illegal detention. Lawyer Wang said.

"In my opinion, this case is a criminal case, and whether there really is a creditor-debtor relationship between the defendant and the victim should be determined in accordance with the criminal law, not according to the standard of proof of the civil law. The reasons are:

First, in a criminal case, it is not appropriate to shift the burden of proof entirely to the defendant, nor should the victim's statement be fully accepted, and whether or not there is 'beyond reasonable doubt' should be used as the criterion for judging whether the creditor-debtor relationship is genuine.

The reason is that civil law implements the principle of 'whoever asserts the claim, who bears the burden of proof', while criminal law implements the principle that the public prosecutor bears the burden of proof for the crime.

In this case, if the only conclusion cannot be reached and there is reasonable doubt, then there is a possibility that the creditor-debtor relationship exists, and the debt cannot be determined to be untrue and does not exist.

Second, in a criminal case, to determine whether the creditor's rights and debts are genuine, the subjective mentality of the parties at the time of the case and whether both parties recognized the debt at that time, rather than listening to the debtor's later words.

This is because people have the psychology of seeking advantages and avoiding disadvantages, and in criminal cases, the victim may be criminally prosecuted for truthfully stating the facts of illegal debts, so it is not realistic to require the victim to make all truthful statements.

Therefore, in a criminal case, the statement denied by the victim (debtor) after the fact is not enough to exclude the possibility of the real existence of the creditor-debtor relationship. Fang Yi said.

"Lawyer Fang, I think what you said has some truth, and in a criminal case, it is true that the final result can only be determined after a reasonable doubt has been eliminated.

In your opinion, how should the authenticity of claims and debts be judged in this type of criminal case? Or is there a possibility? Lawyer Zhao asked.

When he was about to retire, Mr. Zhao had stopped studying business, and had been in the second line for several years, and later came to Beijing to work as a lawyer.

Fang Yi, on the other hand, has been on the front line of business, and has been constantly researching and studying many new theories, adjudication standards and directions, and he will not only study new legal theories, but also study the ideas of judges and prosecutors.

As the so-called major is well chosen, every day is the college entrance examination. As a lawyer, if you don't study, you will soon be thrown out of eighteen streets by your peers, not only will you be looked down upon by the judge in court, you will be despised by the prosecutor, and even the parties will complain and complain.

"Lawyer Zhao is right, I have studied for a long time and read a lot of cases, but to be honest, I still don't think too clearly." Lawyer Sun said very sincerely.

"I have summarized a little experience, which may not be right, and I welcome the correction of my peers here.

Regarding the authenticity of the claims and debts in such cases, I think the following three aspects can be judged:

1. Examine whether there is an economic basis or other relationship between the two parties that triggers the dispute over creditor's rights and debts.

2. Whether there is evidence to prove the existence of 'illegal debts'.

3. Whether the relationship between the criminal means adopted by the defendant and the goal he intended to achieve is in accordance with common sense.

In this case, although there is no direct evidence as to whether the creditor-debtor relationship is genuine, such as IOUs, contracts and other documents, there are reasonable doubts:

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, although the evidence did not mention what the share was, but according to the statement of the victim Cao Wenxue, there was no economic relationship between him and the defendant, and he only cooperated to kidnap outsiders.

Second, according to defendant Gao Qiyuan's confession, the two had discussed the distribution ratio of the ransom before kidnapping outsiders, and 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 the purpose of Gao Qiyuan helping Cao Wenxue kidnap outsiders? Unexplainable.

Finally, the criminal method that the defendant Gao Qi originally intended to adopt was to lock the victim in a warehouse, force the victim to repay the money, and not release the person if he did not repay the money, which was equivalent to the purpose of collecting debts.

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

(End of chapter)