Research On The Crime Of Illegal Detention With Debt Type

With the continuous development of the social economy,the cases of illegal detention of debt type caused by private borrowing are constantly emerging.In these cases,most creditors will inevitably use "slap" "kick," and detain the debtor to realize their claims.According to the second paragraph of the "Regulations on the criteria for filing cases of dereliction of duty and infringement of rights" of the Supreme People’s Procuratorate on July 26,2006,concerning the crime of illegal detention:"There are beatings and insults in the process of detention." The crime of illegal detention of debt type can only be referred to this provision at present.The inclusion of beatings and insults in criminal law considerations has caused controversy and has also brought the following difficulties to judicial practice:First,whether ordinary citizens who do not have the convenience of authority and identity can refer to the applicable national staff standards;Second,whether there is a need to limit the level of violence in the criteria for criminalization of assault,bondage and humiliation;Third,in the course of detention,because of the victim’s intentional assault,the "judicial touch on porcelain" debt cancellation phenomenon can reduce the penalty for violent acts when convicted.For the above-mentioned predicament,the author believes that the third paragraph of Article 238 of the Criminal Law is to pay attention to the provisions rather than the legal preparation system.Therefore,the crime of illegal detention of debt type is not an independent crime,but a standard crime of illegal detention.In the process of debt collection,the perpetrator is almost certain to be accompanied by a slight insult and battery.Such behavior can not be individually evaluated as an independent crime,but it can be evaluated as an illegal detention.This is in line with people’s simple view of justice of course,in the interpretation of the criminal law also in line with the legal protection of the purpose of criminal law.Therefore,the author believes that the crime of illegal detention is a continuous offense,but in the case of mild assault and insult,it also contains the factors of the resulting offender.The legal benefit protected by the crime of illegal detention is personal freedom,but when accompanied by minor assaults and insults,it also includes the physical health and integrity of the person.After clarifying the nature of the crime of illegal detention,the existing judicial dilemma can be improved from the interpretation path and the crime admission standard.In the interpretation path,the existing criminalisation standard can be limited by the theory of"criminal punishment",or the criminal constitution can be explained by the purpose of protecting the criminal law,and then the minor violence can be excluded from the criminal law evaluation.In order to improve the standard way of filing cases for prosecution,the author distinguishes between the legal interests and the fault of the victim of different crimes,and limits the degree of minor violence in the crime.The author believes that in the case of debt type illegal detention with minor violence intervention,the result of minor violence should be limited to 2 minor injuries under normal circumstances,and the length of detention should be limited to a single 8 hours or 3 cumulative 24 hours or more.In exceptional cases,serious ill-treatment of a detainee is criminalized by ex officio interpretation,in contrast to the legal infringement between wrongful acts.