China's legal texts are as follows:
Article 238 Whoever illegally detains others or illegally deprives others of their personal freedom by other means shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights. Those who are beaten or insulted shall be given a heavier punishment.
Whoever commits the crime mentioned in the preceding paragraph and causes serious injuries shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; Whoever causes death shall be sentenced to fixed-term imprisonment of not less than ten years. Whoever uses violence to cause disability or death shall be convicted and punished in accordance with the provisions of Articles 234 and 232 of this Law.
Whoever illegally detains another person or detains another person in order to claim debts shall be punished in accordance with the provisions of the preceding two paragraphs.
Any functionary of a state organ who commits the crimes mentioned in the preceding three paragraphs by taking advantage of his power shall be given a heavier punishment in accordance with the provisions of the preceding three paragraphs.
Generally speaking, the determination of death caused by illegal detention shall meet the following conditions
(1) Subjectively, the actor's serious injury and death to the victim are aggravated by negligence.
Because this situation is the aggravated consequential offense of illegal detention, aggravated consequential offense refers to the situation that a criminal act (basic crime) stipulated by law aggravates its legal punishment due to serious consequences. Chinese and foreign criminal law scholars have many disputes about aggravated consequential offense. Broadly speaking, aggravated consequential offense includes the following types: the basic offense is intentional, and aggravated consequential offense is intentional (intentional+intentional); The basic crime is intentional, and the aggravated result is negligence (intentional+negligence); The basic crime is negligence, and the aggravated result is intention (negligence+intention); The basic crime is negligence, and the aggravated result is also negligence (negligence+negligence). In a narrow sense, only the basic crime of aggravated consequential offense is intentional, and aggravated consequential offense is negligence. Judging from the specific provisions of China's criminal law, the crime of aggravated consequence mainly includes the first type and the second type in a broad sense, that is, the subjective attitude of the actor to aggravated result must be intentional or negligent. four
In the crime of illegal detention, if the perpetrator intentionally causes serious injury or death, it will turn into the crime of intentional injury and intentional homicide, so the perpetrator must subjectively aggravate the result.
Negligence can be divided into negligent negligence and overconfident negligence. Negligence, also known as ignorance of fault, refers to the fault of the actor when he fails to foresee the possible consequences of his actions. Therefore, the actor has the obligation to foresee the harmful consequences, which comes from the explicit provisions of the law, the specific requirements of his position or business, or from legal acts or prior acts. Illegal detention has certain particularity. During the period of illegal detention, the perpetrator illegally deprived the victim of his personal freedom, which caused the perpetrator to have a specific obligation to protect the victim's personal safety, which was caused by the perpetrator's previous illegal detention. Therefore, in the process of illegal detention, the actor should consider the possibility of personal danger to the victim (including minor injuries, minor injuries, serious injuries or death). The criterion for judging whether it is foreseeable should not simply adopt subjective theory or objective theory, but should be based on the principle of the unity of subject and object, the specific facts of the case and the subjective ability of the actor (that is, both subjective theory and objective theory should be considered). For example, during illegal detention, the victim died of a serious heart attack or cerebral thrombosis. When judging whether the actor is at fault, it is necessary to consider whether the actor is an ordinary person or a person with certain medical knowledge. Can the existing evidence prove that the perpetrator knew that the victim had this disease? If the perpetrator knew that the victim had this disease, even as an ordinary person, he should know that the victim's life was in danger at any time, so the perpetrator was subjectively at fault. For example, during illegal detention, the victim committed suicide. When judging whether the actor is at fault, it is necessary to analyze the specific situation. If the victim has committed suicide and is stopped, or the victim claims to commit suicide, or the victim may commit abnormal behavior that leads to suicide (such as buying a rope to hang himself), it can be considered that the perpetrator is subjectively at fault.
(two) there is a causal relationship between the aggravated result of the victim's serious injury and death and the illegal detention of the perpetrator.
Causality in criminal law is an important and sensitive topic in criminal law theory, and it is also a controversial topic for a long time. Numerous Chinese and foreign scholars have devoted a lot of enthusiasm and energy to this and made great progress. However, due to the complexity of causality, there are still differences of opinion on many issues. It is generally believed that causality in criminal law refers to the objective connection between harmful behavior and harmful result, and does not involve the subjective content of the actor. 1 It is only an important issue in studying the objective elements of crime, not the constitutive elements of the objective elements of crime. Harmful results can be divided into broad and narrow sense. In a broad sense, it refers to all the damage facts caused by the actor's harmful behavior to society, including the results that belong to the constitutive elements of crime and the results that do not belong to the constitutive elements of crime. The result that belongs to the constitutive elements of a crime is the harmful result in a narrow sense. Causality in criminal law only refers to the relationship between harmful behavior and harmful result in a narrow sense, so causality in criminal law is a yardstick, which tells us which damage facts belong to the constitutive elements of crime and which damage.
Because this situation belongs to the aggravated consequential offense of illegal detention, aggravated consequential offense constitutes a revised criminal constitution, that is, aggravated consequential offense is also an element of the constitutive requirements of the crime, and there is a causal relationship between the basic criminal act and aggravated consequential offense in criminal law. If the aggravated consequence crime is not caused by the basic criminal act, it cannot be established. So how to judge whether there is a causal relationship between the perpetrator's illegal detention and the victim's serious injury death in criminal law?
To judge causality in criminal law, foreign theories mainly include conditional theory (including interruption theory), cause theory, considerable causality theory (including objective theory, subjective theory and compromise theory) and objective imputation theory. In China's criminal law theory, there are two main theories: inevitable causality and accidental causality. The role of 1 theory is nothing more than guiding practice. It doesn't matter which theory is adopted. The key is how to solve specific practical problems. In the process of illegal detention, there are various reasons (conditions) for the victim's serious injury and death, which are generally compound reasons (conditions). Some people think that as long as this result happens, there is a causal relationship, which is actually the residue of the responsibility for the result. Don't think that there is a causal relationship because of the serious consequences, and try your best to investigate the criminal responsibility of the perpetrator, which will actually expand the causal relationship. The author believes that only illegal detention itself is the main cause of serious injury and death of the victim, can we determine that there is a causal relationship between illegal detention and aggravated results in criminal law. Note that neither conditional theory nor equivalent causality theory nor inevitable causality theory is adopted here. To some extent, it can be said that the causal theory is adopted. Because of the complexity of the victim's serious injury and death conditions, we choose the most powerful condition as the cause, and only this condition has a causal relationship with the result. The most powerful condition is that illegal detention is the main cause of serious injury and death of the victim. For example, in case 2, there are at least three conditions that lead to the suicide of the victim Wang Tiao Reservoir: first, the illegal detention of Zhong and Jiang; The second is to recover gambling debts from Zhong and Jiang; Third, there is no hope to raise money, so the main reason for the victim's suicide is that there is no hope to raise money, while the illegal detention of Zhong and Jiang is only the secondary reason for his suicide.
Illegal detention is the main cause of the victim's serious injury and death, and there may be the following situations: (1) The victim's qi and blood are blocked for a long time due to negligence, resulting in serious injury and death; Due to negligence, the imprisoned victims died of hunger, heat, cold, disease, etc. ; The victim could not bear the detention and injured himself or committed suicide (hanging himself, jumping off a building, diving, etc.). ); The victim was unbearable to be detained and died unexpectedly during the escape (such as falling from a building). Not including in the process of illegal imprisonment, the victim died of a heart attack; The victim committed suicide because there was no hope of paying his debts; The victim was burned to death because of the fire caused by careless smoking. Therefore, if the victim committed suicide during illegal detention, it cannot be generalized, but should be analyzed in detail. If the perpetrator's illegal detention itself is the main cause of the victim's suicide, it should be considered that there is a causal relationship in criminal law. If not, it can't be concluded that there is causality in criminal law. Some people may think that the sentencing is too light. In fact, the severity of sentencing should be based on the specific provisions of the law, not on their own subjective feelings. Moreover, the victim's suicide can be used as a sentencing circumstance and evaluated within the punishment range of less than three years for the basic crime.
Going back to the two cases mentioned above, the answer should be obvious. In the first case, the main reason why the victim Shuimou committed suicide by jumping off a building was that he could not pay off the debts he owed and was afraid of being held accountable. In the second case, the main reason why the victim Wang committed suicide by jumping off a building was that there was no hope of raising money, not illegal detention of the perpetrator. It is biased to think that as long as the victim commits suicide during illegal detention, he should be sentenced to more than ten years.