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Article Piao Zhang Yi
Editor-in-charge Piao Liu Hui
Fine number is illegal " demand repayment " a few blames
Brief introduction of details of a case
On November 2, 2016, classics of second of Wang Mou armour, Wang Mou beforehand plot beforehand, use beat up, tricked means, take Zhang Mou of the injured party forcibly to this city hotel of some Ou Mou. Inside hotel, the person such as Wang Mou armour is used beat up wait for means, press the injured party issue a RMB to its 10000 yuan usurious IOU, get a RMB from the search on body of the injured party on the spot more than yuan 700 are used at prodigal.
Morrow, second of Wang Mou armour, Wang Mou takes Wu Mou of another the injured party forcibly with same way again to this hotel inside, press be imprisoned beat up Wu Mou of the injured party at the Zhang Mou of the place, send Wu Mou flesh wound 2 class. Subsequently, the person such as Wang Mou armour coerces again Wu Mou issue a RMB to its 5000 yuan IOU a piece. Ask at the same time Wu Mou call in order to remand to the relative for debt want money. When two crime suspect is taking Wu Mou to go to a bank taking money, be seized by public security mechanism.
Controversy focus
Dot of the first controversy is the injured party whether is Zhang Mou coerce accessary criminal
The first kind of opinion thinks Zhang Mou is coerce accessary criminal, reason is: The harm that Zhang Mou's behavior causes with guilty place has between consequence direct causal, carried out in impersonal aspect suffer threatening hind the behavior that beats up the injured party. Its are in subjective the crime that goes up to also ought to know perfectly well the person such as Wang Mou is intended.
The 2nd kind of opinion thinks Zhang Mou does not make crime, reason is: Zhang Mou is in the behavior that although provide the person such as helpful Wang Mou to beat up the injured party,goes up objectively, but subjective go up intended without crime. The basis is subjective and objective consistent principle, zhang Mou's behavior does not make crime.
Dot of the 2nd controversy depends on the person such as Wang Mou armour forcing Wu Mou of the injured party to write down an IOU, belong to to home of the injured party at the same time " demand repayment " is behavior formed rob blame or blackmail blame?
The first kind of opinion thinks, 10 thousand yuan of IOUs that the person such as Wang Mou armour coerces Zhang Mou is written down ought to be maintained for blackmail blame (abortive) . Reason is, armour of the Wang Mou in this case is a purpose with detinue, adopt beat up, imprison illegally wait for means, make Zhang Mou is below the case that generates mental fear issue 10 thousand yuan of receipt for a loan, attribute strong demand action, transfer on the spot as a result of what the press behavior of Wang Mou armour can not cause property necessarily, because this ought to be maintained to these 10 thousand yuan IOU,be blackmail, and rather than robs a blame. Additional, those who rob blame and blackmail blame is divisional the punish that still depends on the injured party is free, whether to strip completely already for the person's rough stuff all right namely the injured party is free to the punish of property, 10000 yuan of debt in this case, zhang Mou is OK during sign debt hind or having buffer seek is other relief gimmick, because this has not lose punish freedom, ought to maintain for blackmail blame. Through whether losing the punish freedom of property means of this one judgement looks on the spot 700 yuan of ferret, ought to maintain to rob a blame.
The 2nd kind of opinion thinks, the behavior of the person such as Wang Mou armour ought to be maintained to rob a blame. Reason is: After what carried out enough to squelch its revolt to the injured party for the person all right is violent, threatening, requirement the injured party signs an IOU, although the IOU is not specific property, but can measure with the money, have the possibility of implementation, can force its in the future the behavior of consign property, appropriate is maintained to rob a blame.
The 3rd controversy nods the behavior that depends on the person such as Wang Mou armour to whether form embroil to make, whether to want to count a blame and be punished, namely the behavior of the person such as Wang Mou armour besides form rob a blame or besides blackmail blame, whether to still form imprison a blame illegally? Whether to need to count a blame and be punished?
The first kind of opinion thinks, the behavior that the person such as Wang Mou armour imprisons the injured party illegally is the measure that implements property of its detinue other, both makes the embroil impact of method and purpose behavior, theoretic the provision that should make according to embroil from one felonious punishment.
The 2nd kind of opinion thinks, form embroil to make must have the following important condition: Between the purpose act that embroil commits and the criminality that become its means go up objectively must have immanent, inevitable connection, subjective go up of crime intended also cannot little. Imprisoning the injured party illegally Yu Bin is not the certain way that asks for gold inside the house, both is nonexistent immanent, inevitable connection, because this does not form embroil,make.
Review analyse opinion
Zhang Mou is formed / do not form be an accomplice under duress to make
According to our country " criminal law " the 28th regulation, be an accomplice under duress makes is to point to by threatening the person that joins crime. Go up objectively in process of whole crime activity, be in passive position, whether is be being maintained so coerce accessary criminal key depends on two respects, it is by threatening degree; 2 it is the effect that has in collective crime. The key in this case is after seeing Zhang Mou be imprisoned illegally by other, after be being beaten up, whether did its lose volitional freedom already completely.
The behavior of the person such as Wang Mou armour makes blackmail crime
The behavior of the person such as Wang Mou armour makes blackmail crime. The key here depends on robbing the distinction of blame and blackmail, blackmail blame and robbing a blame is not contrary relation, accord with the conduct that the crime that robs a blame makes, also be blackmail behavior at the same time, but the conduct that the crime that accords with blackmail blame makes, do not accord with the crime that robs a blame to form certainly. Because of this blackmail blame hold water, do not ask violent, threatening method reachs the level that enough suppress others defends. The rate that if violent, threatening method achieves enough,suppress others defends, criterion in order to rob a blame punish.
The person such as armour of the Wang Mou in this case reachs area of the injured party after guesthouse, the rough stuff that takes cuff and kick captured first after the property on its body, coerce the injured party writes down an IOU again, this kind in order to imprison or the action that force considers to coerce, guilty purpose is detinue other property, form blackmail (abortive) .
And rob a blame going up objectively need to be satisfied at the same time " use violent, threatening other perhaps and compulsive method on the spot " and " acquire state-private property on the spot " two important document. If used force on the spot but did not acquire property on the spot, agree however give in the future those who pay, cannot maintain to rob a blame. The IOU in this case regards a kind of creditor's rights as the proof, its itself does not have property value, the purpose of detinue other property still needs the person such as Wang Mou armour to be satisfied of debtor for ability to Fu Hang, do not have " obtain on the spot " . Because this cannot be maintained,be rob a blame.
The behavior that waits for a person still forms Wang Mou armour to imprison a blame illegally
The behavior that waits for a person still forms Wang Mou armour to imprison a blame illegally, but with blackmail embroil significance is not attributed between the blame. Embroil makes two features: It is must be its method behavior or result behavior offended again other charge; A 2 existence embroil relations that are behavior. Criminal law general principles punishs a principle without what proclaimed in writing stipulates embroil makes, but criminal law thinks to make to embroil theoretically commonly should from one felonious punishment. Crucial question depends on: Does suspect of the crime in this case imprison the injured party illegally the certain way that asks for gold within guesthouse? We think, the person such as Wang Mou armour is subjective on have the intention that locks another person illegally, objective admiral the injured party imprisons Yu Bin illegally inside the house, control him actually, its behavior accords with the feature that imprisons illegally. Although the person such as Wang Mou armour is carried out first " extortionate " , again press the injured party writes down an IOU, next " blackmail " , but actual admiral the injured party imprisons Yu Bin illegally is not the certain way that asks for gold inside the house, both is nonexistent immanent, inevitable connection. Because this does not form embroil,make.
