Referee
The perpetrator not only imposes restrictions on the personal freedom of the victim, but also requires the victim to deliver property far exceeding the amount of the debt. The act is based on the claim of debt and illegally detaining others for extorting money, even if there is a creditor’s debt relationship. It should be considered a kidnapping offence.
case
At 10 o'clock on February 24, 2011, the defendant Wang Zhaowei drove the license plate number Lu QED119 BYD sedan and Tian Yuzhou, Ouyang Jiaxiang (all other cases handled), etc., at No. 108, Xinya Road, Luoshe Town, Huishan District, Wuxi City, Jiangsu Province. Near Jinmao Auto Parts Co., Ltd., the Ford Mondeo car with the license plate number Su B698S0 driven by the victim Lin Shuiyong was forced to stop. Tian Yuzhou, Ouyang Jiaxiang and others got off the train and forced Lin Shuiyong to handcuff into the defendant Wang Zhaowei. Driving the car, to solve the problem of Lin Shuiyong owing the debt of Tianyuzhou 36600 yuan, asked Lin Shui for 100,000 yuan in cash. After being rejected, Lin Shuiyong was beaten with a wooden stick, threatening to break his leg if he did not pay the money to Shandong, and took Lin Shuiyong to Feixian and Pingyi County in Shandong Province. After Lin Shuiyong was forced to promise to pay 90,000 yuan and contact his wife Chen Xiaoling for payment. After Chen Xiaoling learned that the payment could be released, she would remit 90,000 yuan to the Agricultural Bank of Tianyuzhou in the morning of the next day. Tian Yuzhou and others will release Lin Shuiyong. The defendant Wang Zhaowei was awarded a sum of 12,000 yuan. Wang Zhaowei was prosecuted by the procuratorate for extortion and blackmail.
referee
The People's Court of Huishan District, Wuxi City, Jiangsu Province, held that the defendant Wang Zhaowei and others used illegal and coercive methods to detain others for extorting money for the purpose of illegal possession. The act of committing kidnapping was a crime of kidnapping and was a common crime. In the joint crime, the defendant Wang Zhaowei played a secondary role and was an accomplice, so he was relieved of punishment. The court ruled that the defendant Wang Zhaowei was convicted of kidnapping and sentenced to two years and six months in prison and fined 3,000 yuan; the money involved in the case continued to be recovered and returned to the victim.
After the verdict of the first instance (case number: (2011) Huigongchuzi No. 0304), the defendant Wang Zhaowei did not file an appeal within the statutory time limit, and the procuratorate did not file a protest, and the judgment had legal effect.
Comment
In the course of the trial, three different opinions were formed about the crimes committed by the defendant Wang Zhaowei and others: The first opinion is that Wang Zhaowei and others have forcibly taken away the victim and illegally restricted their personal freedom. For more than 20 hours, his behavior has constituted an offence of illegal detention. The second opinion is that Wang Zhaowei and others used the method of threatening and threatening the victim for the purpose of illegal possession, forcibly claiming property from the victim, and his behavior was consistent. The characteristics of extortion crimes should be convicted of extortion. The third opinion is that Wang Zhaowei and others used the purpose of extorting the victim’s money, hijacking the victim as a hostage, and letting his family exchange property. The behavior is consistent with the characteristics of kidnapping. Convicted of kidnapping.
There are three different opinions. The reason is that there is a certain similarity between the crime of illegal detention, the crime of extortion and the crime of blackmail. The crime of illegal debt detention and the crime of blackmail kidnapping are subjectively for the purpose of claiming property, and objectively manifested as violence, coercion or other means to illegally restrict and deprive others of their personal freedom. The crime of extortion and the crime of blackmail-type kidnapping are aimed at extorting other people's property, and threatening or defamatory means to force the victim to surrender the property. Therefore, in judicial practice, the confusion between the crime of illegal detention, the crime of extortion and the crime of extortion is often one of the difficulties in trial practice, and it is necessary to carefully screen it.
First, the difference between extortion and extortion. There are two main aspects to be grasped: First, the objects of extortion of property are different. In the crime of kidnapping, the victim is different from the person who is being blackmailed. In the crime of extortion, the victim has the same identity as the person who is being blackmailed. Second, the behavior is different. The ransom-type kidnapping crime threatens the victim's family or other people by means of killing, hurting, detaining, etc., and requests for ransom. The violent way has the reality and urgency that can be immediately implemented. The "making money with money" is its essence. feature. In the crime of extortion, threats and threats include violence, destruction of the victim's personality or reputation, disclosure of the victim's privacy, destruction of the victim's important property, planting and framing, etc., without limiting the victim's personal freedom, as long as it can cause the victim's psychological fear. Yes, the threat content is implemented in the future. In this case, the defendant Wang Zhaowei and others controlled the victim's personal freedom, and threatened the victim to threaten the victim's family. This threat is realistic. In addition, Wang Zhaowei and others are not only the victim himself, but the income of 90,000 yuan is also obtained in the case of coercing the victim's family, that is, the victim has no identity with the blackmailed property person. Therefore, the behavior of the defendant Wang Zhaowei and others is not in conformity with the crime of extortion.
Secondly, the difference between the crime of illegal debts and the crime of blackmail-type kidnapping. The main differences should be grasped as follows: First, the object of criminal infringement is different. Although both belong to the chapter on violation of citizens' personal rights and democratic rights, the object infringed by the former is the personal right of the citizen and is a single object; the object of the latter is a complex object, except for the violation of the personal rights of the citizen, including violations. The property rights of others are focused on infringing upon the personal rights of citizens. Second, the objective aspects are different. The objective performance of the former does not raise other illegal claims unless the law detains others. The perpetrator only filed a request for the debtor to pay off the debt. The request was reasonable. Although it was not legal, it did not infringe on the property rights of others. The composition of the latter is essentially a compound behavior, including the behavior of the means and the behavior of the purpose, that is, not only the behavior that is mandatory for the victim, but also the behavior of extorting property. Third, subjective aspects of crime are different. The purpose of illegally detaining a crime is to deprive others of their personal freedom. The purpose of abducting a crime is not only the illegal deprivation of personal liberty, but also the extortion of property or other unlawful demands of the perpetrator. The existence of debt is crucial to the definition of behavior. If there is a creditor-debtor relationship between the two parties, the perpetrator is based on the purpose of claiming debt, and the amount of debt requested is not much different from the actual amount of credit, indicating that the subjective purpose is mainly to obtain Debt should be punishable by illegal detention. However, if the property that clearly exceeds the debt amount is claimed, the subjective purpose of the perpetrator is mainly to illegally possess the property of others, and the claim for debt becomes a secondary purpose, the crime of kidnapping should be fixed. From the analysis of the case, the defendant Wang Zhaowei and others not only imposed restrictions on the personal freedom of the victim, but also required the victim to deliver property far exceeding the debt amount. The request has no factual and legal basis, and its behavior has exceeded the criminal law evaluation of the crime of illegal detention. Instead, the debt is used as an excuse to illegally detain others for the purpose of extorting money. Even if there is a creditor-debtor relationship, the crime of kidnapping should be fixed.
In summary, the third opinion is correct. The defendant Wang Zhaowei and others should be convicted and punished for the crime of kidnapping.
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