Article 37 of China's Constitution stipulates: "The personal freedom of the citizens of the Chinese People's **** and State shall be inviolable. No citizen shall be arrested unless authorized or decided by the people's procuratorate or decided by the people's court and carried out by the public security organs, and unlawful detention and other methods of unlawfully depriving or restricting a citizen's personal freedom are prohibited." Therefore, illegal detention is a serious deprivation of citizens' physical freedom.
According to Article 238 (1) and (2) of the Criminal Law, a person who commits the crime of unlawful detention shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, control, or deprivation of political rights, and shall be given a heavier punishment if he or she has been beaten or insulted. A person who commits the crime of unlawful detention and causes serious injury shall be sentenced to fixed-term imprisonment of not less than 3 years and not more than 10 years; a person who causes death shall be sentenced to fixed-term imprisonment of not less than 10 years. A person who uses violence to cause injury or death shall be convicted and punished in accordance with the provisions of articles 234 and 232 of this Law. Where an employee of a State organ commits the crime of unlawful detention by utilizing his or her official position, he or she shall be given a heavier penalty.
The so-called circumstances of beating or insulting means beating or insulting in the course of illegal detention for the purpose of carrying out the detention. As a serious situation of illegal detention crime of beating, insulting whether including beating, insulting behavior independently constitutes a crime, should include the crime of minor injuries and insults, but should not include the crime of intentional injury of serious injuries, for the negligence of causing serious injuries, should be applied to the crime of illegal detention of aggravating the result of the crime of the statutory penalties; intentionally causing serious injuries, should be according to the provisions of the conversion of the provisions of paragraph 2 of this article, with intentional injury crime. shall be punished.
The so-called "causing serious bodily injury" and "causing death" only refers to the negligence of causing serious bodily injury and death, and does not include the case of causing serious bodily injury by negligence with the intention of causing minor bodily injury, because this situation is still the scope of the crime of intentional serious bodily injury.
The so-called unlawful seizure or detention of a person for the purpose of claiming a debt refers to the case of claiming a legal debt. Article 238 (3) of the Criminal Law clearly stipulates that "unlawful seizure or detention of another person for the purpose of obtaining a debt" shall be punished in accordance with the provisions of the crime of unlawful detention. And if the perpetrator for the demand for illegal property and seizure, detention of others, according to the judicial interpretation of the crime of unlawful detention
The perpetrator for the demand for usury, gambling debts and other legally unprotected debt, unlawful seizure, detention, according to the provisions of Article 238 of the Criminal Law, criminalized and punished.
State organ staff using their powers to commit the crime of unlawful detention, heavy punishment, limited to the "use of power"; without the use of power, shall not be punished severely. In addition, it should be noted that the perpetrator of unlawful detention has more than one aggravating circumstance, should be punished more heavily. For example, the staff of state organs to use their powers to unlawfully detain, but also has a beating, insulting circumstances, this is the case.
The object of the crime of unlawful detention must be a natural person who has the freedom of movement of place. Since human action is governed by consciousness, so the freedom of physical activity is the freedom of meaning activity, this freedom of factual state, and not to the extent that the actor in law has the ability to responsibility and legal capacity. As for infants, highly mentally ill people and other lack of the ability to change the meaning of the place where it stays to decide, there is no freedom of action at all, and can not become the object of the crime of unlawful detention. The person who can move with the help of crutches, the young child who can move alone, etc., can become the object of the crime of unlawful detention.
Article 238 of the Criminal Law Unlawful detention unlawfully detains another person or unlawfully deprives another person of his personal freedom by other means, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, control or deprivation of political rights. Where there are circumstances of assault or insult, the punishment shall be heavier.
If a person commits the crime in the preceding paragraph and causes serious injury, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years; if he causes death, he shall be sentenced to fixed-term imprisonment of not less than ten years. Anyone who uses violence to cause injury or death shall be convicted and punished in accordance with the provisions of Article 234 of this Law on the crime of intentional injury and Article 232 on the crime of intentional homicide.
Whoever unlawfully seizes or detains another person for the purpose of demanding a debt shall be punished in accordance with the provisions of the preceding two paragraphs.
State organ workers who utilize their powers to commit the crimes of the preceding three paragraphs shall be punished severely in accordance with the provisions of the preceding three paragraphs.
The Interpretation of the Supreme People's Court on the Question of Conviction for Illegal Detention of Persons for the Purpose of Claiming Debts Not Protected by Law[2] July 13, 2000
If a person illegally seizes or detains another person for the purpose of claiming debts that are not protected by law, such as loansharking and gambling debts, he/she will be convicted and punished in accordance with the provisions of Article 238 of the Criminal Law.
The crime of unlawful detention has the following two characteristics: firstly, the act of detaining another person is committed, and secondly, such detention is unlawful. Detention behavior of various methods, such as binding, imprisonment, detention, etc., the essence is to forcefully deprive others of personal freedom. In China, there are strict legal provisions for arrest and detention, which must be carried out by specialized organs in accordance with the procedures prescribed by law. According to the Constitution[3] and the Criminal Procedure Law and other legal provisions, the personal freedom of citizens is inviolable; no citizen shall be arrested unless authorized or decided by the people's procuratorate or decided by the people's court and carried out by the public security organs; and detention can only be decided by the public security organs and the people's procuratorate and carried out by the public security organs. It is therefore unlawful for any organ, organization, enterprise, institution or individual to detain another person other than in accordance with the provisions of the law or in accordance with the procedures set forth therein. Violators shall be punished in accordance with the law. In accordance with the provisions of the Code of Criminal Procedure and related laws, citizens have the right to immediately transfer to the judicial authorities any person who is committing a crime or who has been discovered in a timely manner after committing a crime, is wanted for arrest, has escaped from prison, or is being pursued. Such acts of rendition, including acts of binding and detention committed en route, cannot be considered acts of unlawful detention. To constitute the crime of unlawful detention, the act must be committed intentionally.
According to the provisions of the Criminal Law, the penalties for the crime of unlawful detention are divided into the following cases:
1. Anyone who unlawfully detains another person or unlawfully deprives another person of his personal liberty by other means shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, control or deprivation of political rights. If there are circumstances of beating or insulting, the punishment shall be heavier. "Beating and insulting" mainly means that in the process of illegal detention, the victim was subjected to beating and insulting behavior, such as scolding and parading in the street.
2. Unlawfully detaining another person or unlawfully depriving another person of his personal freedom by other means, resulting in serious injury, shall be sentenced to not less than three years and not more than ten years of fixed-term imprisonment; resulting in death, shall be sentenced to not less than ten years of fixed-term imprisonment. "Causing grievous bodily harm" means that in the course of unlawful detention, the victim's physical health is seriously harmed as a result of over-tightening of the bonds, prolonged confinement, or ill-treatment; or that the victim, unable to endure the unlawful detention, inflicts injury on himself or herself and his or her physical health is seriously harmed. "Causing death" means that in the course of unlawful detention, the victim died as a result of being tied up too tightly, or suffocated as a result of being gagged, and the victim committed suicide during the period of unlawful detention.
3. If, in the course of unlawfully detaining another person or unlawfully depriving another person of his personal freedom by other means, violence is used to cause injury or death, the person shall be convicted and punished in accordance with the provisions of the crime of intentional injury or homicide. "The use of violence resulting in disability or death" means that in the course of unlawful detention, the use of violence is intentionally used to harm the physical health of the victim or to kill the victim, resulting in disability or death of the victim.
4. If a staff member of a state organ commits the crime of unlawful detention by utilizing his or her authority, he or she shall be punished more severely.
The act of unlawfully seizing or detaining another person for the purpose of claiming a debt shall also be punished in accordance with the crime of unlawful detention. "Unlawful seizure and detention of another person for the purpose of soliciting a debt" refers to the act of unlawfully detaining another person and depriving him of his personal liberty for the purpose of coercing him to fulfill a lawful debt. This kind of behavior, although different in character from general illegal detention, does not aim at depriving others of their personal freedom, but rather uses deprivation of others' personal freedom as a means to coerce others to fulfill their debts. However, it has objectively caused infringement of the victim's personal freedom and should also be dealt with in accordance with the crime of unlawful detention. If the staff of state organs to use their powers, in order to obtain debt unlawful seizure, detention of others, then it should be punished severely.