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. Whoever beats or insults others 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".
"State functionaries who commit the crimes mentioned in the preceding three paragraphs by taking advantage of their functions and powers shall be given a heavier punishment in accordance with the provisions of the preceding three paragraphs".
Interpretation: This article is about the punishment of the crime of illegal detention.
The crime of illegal detention refers to the act of illegally depriving others of their personal freedom by detention or other coercive means. Illegal detention is manifested in two aspects:
The first is the act of detaining others.
Secondly, such detention is illegal.
There are various methods of detention, such as binding, imprisonment and detention. Its essence is to forcibly deprive others of their personal freedom. According to the constitution, citizens' personal freedom is inviolable; "With the circumstances of beating and insulting" refers to beating and insulting the victim in the process of illegal detention, such as beating, cursing, parading in the streets and so on. In accordance with the provisions of the first paragraph of this article, anyone who 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.
Criteria for filing a lawsuit
There is no relevant judicial interpretation on the criminal prosecution standard of the crime of illegal detention, except that the state functionaries use their powers to be suspected of illegal detention. In practice, we can refer to the prosecution standard of illegal detention by taking advantage of authority.
Source: Provisions of the Supreme People's Procuratorate on the Standards for Filing Crimes of Dereliction of Duty and Infringement.
Cases of illegal detention of state functionaries by taking advantage of their powers (Article 238)
State functionaries who illegally detain by taking advantage of their authority and are suspected of any of the following circumstances shall be placed on file:
1. Illegally depriving others of their personal freedom for more than 24 hours;
2. Illegally depriving others of their personal freedom, using weapons, binding and other bad means, or beating, insulting or abusing others;
3. Illegal detention, resulting in minor injury, serious injury or death of the detainee;
4. Illegal detention, if the circumstances are serious, causing the detainee to commit suicide or self-harm, causing serious injury, death or mental disorder;
5. Being illegally detained for more than 3 times;
6. Judicial personnel illegally detain people who know that there are no illegal and criminal facts;
7. Other circumstances in which criminal responsibility should be investigated for illegal detention.
I hope the above content can help you. If in doubt, please consult a professional lawyer.
Legal basis:
Article 238 of the Criminal Law of People's Republic of China (PRC) 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 harm to Zhao Zi 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.