Determination Of The Crime Of Illegal Detention For Debt

At present,China's current criminal law and related judicial interpretations are not clear in defining the crime of illegal detention for debt,there is ample space for interpretation and the role of distinguishing this crime from other crimes cannot be fulfilled,especially the distinction between the crime of illegal detention for debt and kidnapping is very controversial in both the theoretical and judicial practice.The determination of the crime of illegal detention for debt should be discussed in three aspects:First of all,the exercise of rights does not have the purpose of illegal possession.Therefore,for the purpose of claiming debt,there is no subjective purpose of extorting money and possessions of kidnapping.However,the right to exercise the right of action must have a legitimate source.The illegal “debt” must not belong to the category of the debt of this crime.The illegality of the means of action cannot change the nature of the debt itself,and cannot be determined solely on the basis of the illegality of the means of action.In addition,the demand for excess "debt" will also affect the determination of subjective aspects.Secondly,the different understanding of the range of "others" of the criminal target also led to the vague definition of the crime.In judicial practice,there is generally no strict restriction on the subject of crime,and the strong point of view is only limited to the scope of the third person who has a common property relationship with the debtor and maintenance.However,the inclusion of a third person who does not have a discharge obligation as a criminal object of this crime is a derogation from the protection of the third person's personal right,and the perpetrator may subjectively use the third person as a hostage.Therefore,the object of detention should be limited to the debtor,but the object of the debt can include a third party who has a specific relationship with the debtor.In the end,illegal means of detaining crimes generally do not have serious violence,however,the level of violence is not based on the assessment of harm results.If they extort debts from a third party by threatening to kill or injure the detained person,they should be punished by the crime of kidnapping.