On The Knotty Problems Of The Crime Of Illegal Detention

The crime of illegal detention is a crime of serious infringement of citizens’personal freedom.In the today of advocating the protection of human rights,it is aperformance of infringement of citizens’ personal rights,so it attracts many scholars’attention.Due to the influence of various factors,in recent years, the cases of illegaldetention are not only rising in number,and showing many new characteristics in theexternal form of expression.But because China’s current criminal law and the relevantjudicial interpretations have not made clear provisions to some problems of this crime,leading to whether the theory circle of the criminal law and the practice circle havemuch controversy on determination of illegal detention,especially specific cases areoften complex in the judicial practice,there are differences on such behavior convictedor not and when divergence,it leading to judicial officers mess when decidingparticular case,behavior of people may suffer great disparity of the trial results,it isnot only unfair to behavior of people,but also severely damage judicial seriousness,soit is necessary to have a deep exploration and research on the crime.This thesis includes introduction, body and conclusion of three parts,and thebody is divided into the following three parts:The first part makes determination of basic structure of the crime of illegaldetention.In this paper,the author does not elaborate four constitutive elements of thecrime in detail,but makes deep exploration on some controversial issues in the theorycircle and the practice circle of the criminal law, and puts forward my own views onthis basis.In this issue of the object of crime,the author thinks that the object of thecrime should include every natural person based on the laws of nature to birth, as faras its range,the mental patient, dementia and baby should also be includedcertainly.But the establishment of this crime does not need the victim aware of theirpersonal freedoms having been violated, that is to say, the protected benefit of lawincludes both freedom of realityand the possible free.As for the concerningcontroversial in the subjective aspect of this crime, the author advocates that the crimeof illegal detention can be composed of indirect intention.And knowledge of illegalityshould not become the content of intention of the crime, because the differentsituation of illegal cognition can not have any impact on qualitative of behavior,itshould be not a factor considerd by judicial personnel in the justice. The second part is determination of the crime of illegal detention for debts asspecial constitute of the crime of illegal detention.Firstly,the author makes preliminarydiscussion on the" for debts", pointing that" for debts" is a subjective factor, and it isnot only the lawless element. Secondly, the author expounds the understanding of"debt", it can be said that this is the key of the part, in particular the nature of the debt,the author thinks that the debt here should not exclude illegal debt, but we need to payattention to that, the crime of illegal detention for legal debts and the crime of illegaldetention for illegal debts have the same form, they are both the crime of illegaldetention for debts, but not the same in the standard. Furthermore the author thinksthat, the "others" as here the victim includes not only the debtor himself, but alsoincludes the closely related people with the debtor, as for the debtor ’s relatives,partners and other interested parties. Finally, this paper also explores thedetermination between the crime of illegal detention for debts and rope wealth thekidnapping, two kinds of crime prone to confuse in the judicial practice, the accuratedefination on the two crimes is the basic premise of the correct conviction andsentencing.The third part discusses the problems about the penalty of the crime, it should besaid that it is the analysis of the article238th of the criminal law about the crime ofillegal detention,and because the result-aggravated crime and the transforming crimeoften differ greatly in the judicial practice, So the author only discusses these twoissues. On the problem of the result-aggravated crime, the author undertakes relativelythorough inquiry on established conditions to satisfy, including that the behavior ofpeople’s subjective mental attitudes must be negligent and unintentional,the causalityin criminal law must be truthful, objective existence. As for the transforming crime,the author expounds the concept, essence and conditions, finally, on the basis of deepunderstanding the connotation of "disability", the author points that, considering fromthe legislative improvement, abandoning the term of "disability" is appropriate.