The Conviction Of Illegal Detention For Debts

In China’s criminal law, the crime of illegal detention for Debts is not a separate crime,but a special branch of illegal detention crimes. Due to the opaqueness of China’s criminallegislation provisions, and the similarities of such crime and kidnapping, controversiesexisted on the identification of the two crimes lasted for long time. This article develops itsarguments from the case of Gaiwei, which covers the use of the comparative method,speculative method and normative analysis method to discuss the differences of the twocrimes, making it beneficial in possible relative juridical practices.This paper falls into five sections, totaling approximately twenty thousand words.Part I: the cause of Gaiwei’s case.Part II: Introduction of the case. GaiWei’s illegal detention of the debtor and his son.Part III: The core of the case. Views to the problem of the "third-person" and "debt".Part IV: The controversy of the case. The conviction on the illegal detention of debtorsson and exceeding amount of the due debts.Part V: legal analysis. First, the author analyzes illegal detention for debts from itsconstitution to its characteristics, and with personal views of related current theories putforward. The object of the crime is a single object, the perpetrator only violates others’personal rights. In objective aspect of the crime, the author thinks the behaviors in this casehave coincidences with the previous one but is not severe, compulsive or violent enough forkidnapping. Then the author discusses the problem of how to identify the "third-person" and"debt" in the crime of illegal detention for debts. Finally, for distinguishing illegal detentionfor debts from the kidnapping crime, the author dissertates the constitution of kidnappingcrime, and the author thinks that the the differences between illegal detention for debts andkidnapping is mainly developed from the object of the crime, the behavior, and subjectiveaspects of the two crimes. The author believes that the existence of creditor-debtorrelationship should not be the sole criterion of the conviction. However, it should be based onsubstantive differences between the two crimes, or specific subjective aspects of thepenetrator and the impacts on personal freedom, life, and health conditions.Part V: Case Evaluation. Evaluations were given on the reasonability of the quoted caseafter the comparative analyses of two crimes.