"We've been discussing the authenticity of the debt just now, and I have a question, so I'd like to ask you.

If there is actually no debt between the two parties, and the perpetrator mistakenly believes that there is a creditor-debtor relationship between the two parties, even if the act of detention is carried out to collect debts, does it not constitute the crime of unlawful detention? Because there is indeed no real creditor-debtor relationship between the two parties.

Is that so? I don't know if I'm right or not. Lawyer Sun asked suddenly.

"I don't think it can be understood in this way, from the analysis of the constitutive elements of a crime, every crime has four elements: that is, the subject of the crime, the subjective aspect of the crime, the object of the crime, and the objective aspect of the crime. That's certainly not right. Lawyer Zhao said with a smile.

"I agree with Mr. Zhao.

As far as this case is concerned, whether it is an illegal debt or an illegal debt, the subjective and objective elements of the crime of illegal detention should be met.

In my opinion, in such cases, in addition to examining and excluding the fact that the debt was created out of nothing, the subjective purpose of the defendant should be examined while examining the authenticity of the debt.

Whether the perpetrator constitutes a crime can only be analyzed on the basis of the theory of crime composition and in accordance with the principle of unity of subjectivity and objectivity, that is, whether the perpetrator's thoughts and practices are consistent, which is also the key point to distinguish this crime from the other.

As far as the illegal detention for debt collection is concerned, I think that even if there is no actual creditor-debtor relationship between the two parties, or the creditor-debtor relationship is not clear, it is just that the defendant recognizes the wrong object, and even takes it for granted that they are linked. However, as long as the defendant subjectively believes that the other party has defaulted on his debts and has detained the victim, and the amount of arrears recovered does not obviously exceed the amount of the debt, it should also be found to be the crime of illegal detention because there is no purpose of illegal possession.

Specifically, in this case, the evidence in the case proves that the defendant Gao Qiyuan, when he premeditated, clearly pointed to the victim Cao Wenxue who embezzled his share of the ransom, and the evidence in the case could not prove that his intention to commit the criminal act had subsequently changed, and his objective and subjective purposes were both to recover 'debts', so his actions constituted the crime of illegal detention.

Although the Supreme People's Court has expanded the crime of illegal detention by way of judicial interpretation from the collection of legal debts to the collection of 'debts that are not protected by law'. However, there are still many controversies over how to determine this special crime of illegal detention for debt collection in judicial practice.

I have looked at relevant cases, and the verdicts of different courts have been different in cases of illegal detention for debts. So what I'm saying is just for your reference. Fang Yi said.

Even if the president of the Provincial High Court came, he did not dare to say that all the courts in the province would be consistent in their verdicts on the crime of illegal detention for debts, which was related to the specific facts of the case, and even more related to the understanding and professional ability of the presiding judge. Lawyers sometimes need a bit of luck to handle cases, and several litigators here have experienced this.

At noon, Zhou Shen invited Fang Yi to dinner, accompanied by three lawyers, and everyone talked about the judicial status quo again and made a bunch of complaints.

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

"Senior brother, do you have any thoughts about coming to the capital to develop?" Zhou Shen and Fang Yi sat side by side in the back 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.

Now that his son is going to take the high school entrance examination, his father is old and at home, Fang Yi has just opened up the situation in the city, to be honest, he really doesn't want to come to the capital.

"It's okay, I'll be looking for you in the future, you can help." Zhou Shen smiled and took out a big red envelope and stuffed it into Fang Yi's bag.

"Senior brother, you're going to see the outside." Fang Yi saw him say so.

"As we said before, there is no labor fee, but there must be a red envelope. I can't let you run for nothing, you must take it. Zhou Shen insisted.

After seeing Fang Yi away, the three of them returned to the conference room.

"How is Gao Qiyuan's case plan decided?" Lawyer Sun looked at Lawyer Zhao and Lawyer Wang and asked.

He has the least experience among the three, and he assists the two in handling the case, so the big idea is for Zhao and Wang to take it, and of course the risk must be borne by Zhao and Wang.

"I think let's defend according to the lesser crime, I think what Lawyer Fang said today has some truth." Lawyer Zhao thought for a moment.

"I think that no matter whether what Lawyer Fang said is right or not, there is only one final test standard, and that is the court's judgment. Although sometimes the court's judgment is not necessarily convincing to everyone. Lawyer Wang was a little unconvinced, but it was inconvenient to show it.

"Well, it's better to come up with a plan for a light crime, but we must explain the risk, after all, the defendant's behavior is an attempt to commit a crime, and even if it is found to be a crime of illegal detention, it can be mitigated or reduced by comparison with the completed crime.

In the unlikely event that the court does not find the crime of unlawful detention and finds that it constitutes another crime, such as attempted kidnapping, it will be even more detrimental to the defendant. Lawyer Zhao said.

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

"What if the court finds that it is not 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 proved that the decision of lawyer Zhao and the three was right, and Gao Qiyuan's case was finally found by the court to be the crime of illegal detention, and Gao Qiyuan was sentenced to one year in prison for attempted crime.

The court's reasoning for the adjudication was the same as what Fang Yi said before, holding that the defendant Gao Qiyuan used detention to solicit criminal stolen money, and the money he demanded was a "debt not protected by law", and according to the provisions of the "Interpretation on the Issue of How to Convict the Illegal Detaining of Others for the Purpose of Collecting Debts Not Protected by Law", Gao Qiyuan's conduct should be characterized as the crime of illegal detention.

When the three of them talked about the case with their peers, they didn't dare to attribute all the credit to themselves because of Zhou Shen, and invisibly promoted Fang Yi. Of course, this is all later, and Fang Yi doesn't know it.

In the evening, Fang Yi took Xiao Zhigang back home, and Yunmei's call arrived.

"Mr. Yun, do you have something?" After Fang Yi answered the phone, he asked.

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

"At the law firm, there is no arrangement for the time being." Fang Yi said.

"In our tea house, there are two tea masters, one of them is the sister of the tea master named Wu Meiqin, who was arrested some time ago, just finished calling me, if it is convenient for you tomorrow morning, I will ask her to come to you and consult her sister-in-law." Yunmei Road.

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

"Son, what do you want for dinner?" Fang Yi asked as he walked into the small bedroom.

……

(End of chapter)