1. According to the current relevant laws and regulations, the crime of illegal detention refers to the criminal act of illegally depriving others of their personal freedom by detention, confinement or other coercive methods. The object of the crime of illegal detention is the personal freedom of others. The so-called right to physical freedom refers to the right of personality whose content is that the actions and behaviors of the body are not illegally interfered, that is, the right to decide one's own physical behavior according to one's own will within the legal scope. Two, the standard of the crime of illegal detention is that as long as there is one of the following circumstances, it should be placed on file for investigation. 1, illegally detained for more than 24 hours; 2. Illegally detaining others for more than three times, or illegally detaining more than three people at one time; 3, illegal detention of others, and the implementation of binding, beating, insulting and other acts; 4, illegal detention, resulting in disability, death, mental disorders; 5. In any of the above circumstances, illegally detain others or detain others for the purpose of demanding debts; 6. The judicial personnel illegally detained an innocent person. The above is the answer about how to identify the crime of illegal detention.
Legal objectivity:
(a) the boundary between this crime and non-crime 1, draw a clear line between the general crime of illegal detention and the crime of illegal detention. Illegal detention only constitutes a crime if it reaches a serious level. Therefore, the nature of illegal detention should be comprehensively analyzed and determined according to the seriousness of the circumstances, the size of the harm, the motivation of private interests, the length of detention and other factors. Article 22 of the Regulations on Administrative Penalties for Public Security stipulates that anyone who illegally restricts the personal freedom of others, but not serious enough for criminal punishment, shall be detained for less than 15 days, fined for less than 200 yuan or given a warning. In judicial practice, anyone who has one of the following circumstances shall be punished as a crime: (1) State functionaries abuse their powers and illegally detain innocent people, causing adverse effects; (two) illegal detention of others, the implementation of binding, beating, insulting and other acts; (3) Illegally detaining others for many times, or illegally detaining many people, or illegally detaining for a long time; (four) illegal detention, causing serious injury, death, mental disorder or suicide; (5) Illegal detention, resulting in other serious consequences. 2. Draw a clear line between illegal arrest and illegal detention. The main difference between the two is that illegal detention and arrest are in violation of the legal provisions on detention and arrest. Generally speaking, the judicial personnel decide, approve and execute the arrest according to the statutory authority and conditions, which violates the relevant procedures, formalities and deadlines stipulated by law and does not have the motive and purpose of illegal detention. Such as: general overdue arrest and arrest; Failing to handle and produce the detention certificate and detention certificate in time; Failing to notify the family members of the criminal suspect or the unit to which he belongs in time according to law; If the criminal is detained for an extended period without going through the extension formalities first, it does not constitute the crime of illegal detention. A person who is wrongly arrested or arrested due to various objective factors does not constitute a crime. (2) The boundary between this crime and the crime of extorting a confession by torture, both of which are crimes against personal rights, are often interrelated and easily confused in practice. The difference between them is: 1, and the main elements are different. The former is a general subject, and the latter can only be national staff; 2. The targets of crimes are different. The former is an ordinary citizen, and the latter can only be a criminal suspect accused of illegal and criminal acts; 3. The manifestations and purposes of criminal acts are different. The former illegally deprives others of their personal freedom by detention or other coercive methods, while the latter extorts confessions by torture by corporal punishment or disguised corporal punishment. If the two crimes occur together and are interrelated, they should generally be treated as felonies as implicated offenders. Non-state employees who commit detention acts such as "extorting a confession by torture" can be punished as the crime of extorting a confession by torture. (3) The involvement of one crime with several crimes, the involvement of illegal detention with intentional homicide, intentional injury, extorting confessions by torture and violent evidence collection, and the involvement of competing illegal detention with intentional homicide and intentional injury are usually manifested in the fact that the perpetrator violently injured the victim during the illegal detention, or the perpetrator intentionally caused the victim to die or be injured due to freezing and hunger. As for the case of injuring the victim in illegal detention, it should be noted that the second paragraph of this article clearly stipulates that illegal detention "causes disability or death by violence" shall be convicted and punished according to the crime of intentional injury and intentional homicide. Therefore, on the one hand, this situation should only be convicted and punished as a felony, that is, intentional injury or intentional homicide. On the other hand, we should pay attention to its applicable conditions: it must be "using violence" and "causing disability and death" in illegal detention. The "disability" here does not include minor injuries, but refers to serious injuries, but is not limited to physical disabilities, but includes various situations that are harmful to personal health. As for the latter case, the perpetrator's purpose is to intentionally hurt and kill the victim, but his method is illegal detention. Naturally, we should be convicted and punished from a felony according to the punishment principle of implicated offense, that is, according to the crime of intentional injury or intentional homicide. The crime of illegal detention, the crime of extorting confessions by torture and the crime of obtaining evidence by violence take the form of implicated crime or imaginative joinder crime, which is manifested in the illegal detention of criminal suspects, defendants or witnesses by judicial staff, and in the process of extorting confessions by torture or extorting evidence by violence. In this case, the perpetrator should be convicted and punished according to the crime of extorting a confession by torture or the crime of obtaining evidence by violence. Of course, if the perpetrator extorts a confession by torture or obtains evidence by violence in the process of detaining others, causing disability or death, he should be convicted and punished for intentional injury and intentional homicide. 2. The imaginary concurrence of the crime of illegal detention and the crime of nuisance of official duties refers to the act of preventing the staff of state organs from performing their duties according to law by violence or threat, preventing NPC and local people's congresses from performing their duties according to law by violence or threat, or preventing the staff of the Red Cross from performing their duties according to law in natural disasters and emergencies. In addition to deliberately obstructing the state security organs and public security organs from performing state security tasks according to law, which has caused serious consequences, "violence and threats" are not necessarily used. Violence and threats are the necessary behavior methods and conditions for other acts that interfere with official duties to constitute a crime. Violence in the crime of disrupting official duties generally refers to hitting or coercing the bodies of specific personnel such as state functionaries, such as beating and binding. In judicial practice, illegal detention means such as binding often hinder official duties. In fact, this is an act of committing two crimes at the same time, which belongs to imaginative joinder and should be severely punished as a felony. The statutory penalties for the crime of illegal detention and the crime of disrupting public service are basically the same in this law, which involves the question of which crime should be used to convict and punish the perpetrator. We believe that the crime of obstructing official duties should be convicted and punished, which can better reflect the overall nature and essential characteristics of the behavior. Of course, if it is in the process of illegal detention that causes serious injury or death, it should be convicted and punished according to the crime of illegal detention, because this article stipulates the statutory punishment for the crime of aggravated consequence (but if it is intentional injury or death, the actor should be convicted of intentional injury or intentional homicide, and the crime of illegal detention or obstruction of official duties is no longer stipulated). 3. Imaginary concurrence of the crime of illegal detention and the crime of violent interference with freedom of marriage. The concurrence of the crime of violent interference with the freedom of marriage and the crime of illegal detention is also roughly the same as the crime of obstructing official duties. The difference is that the crime of violent interference with the freedom of marriage is stipulated in our criminal law as "informing before handling", while the crime of illegal detention is not. In this way, when there is a competition relationship between the two crimes under certain circumstances, it should be analyzed according to different situations: (1) Illegal detention of others interferes with freedom of marriage, which has not caused serious consequences. If the victim fails to report the case to the judicial organ, the defendant should not be investigated for criminal responsibility. Because this law stipulates the principle of informing first and then dealing with it, when dealing with the imaginary concurrence of the crime of violent interference with freedom of marriage and the crime of illegal detention, if the parties do not inform, it is not appropriate to apply the crime of illegal detention according to the usual principle; If the parties have told us, they should be treated as imaginary joinder and punished as illegal detention. (2) If illegal detention interferes with the freedom of marriage of others, resulting in the death of the victim, the defendant shall be investigated for criminal responsibility according to the principle of imaginative joinder of offenses. This is because Article 257 of this Law stipulates that violent interference with the freedom of marriage of others causes the death of the victim, which is not included in the "handling after informing". So if this happens, it should be handled according to the principle of imaginative joinder of offenses. However, if this article stipulates that illegal detention causes death, it shall be sentenced to fixed-term imprisonment of not less than 10. If article 257 of this law stipulates that violence interferes with freedom of marriage and causes death, the legal punishment shall be fixed-term imprisonment of not less than 2 years but not more than 7 years. Compared with the two, the former is more serious, so the crime of illegal detention applies. However, considering that the former is much heavier, and considering the legislative spirit of Article 257 of this Law, when the statutory penalty of "causing death" by illegal detention is applied, it can be appropriately given a lighter punishment. (3) Whoever interferes with the freedom of marriage of others by illegal detention, causing serious injuries, shall be dealt with separately depending on whether the parties have informed him or not. First, if the parties inform the judicial organs, the criminal responsibility of the defendant should be investigated according to the principle of imaginative joinder of offenses. The legal punishment basically constituted by the crime of illegal detention should not be regarded as the legal punishment of illegal detention "causing serious injuries". At this time, although Article 257 of this law does not stipulate how to deal with serious injuries caused by violent interference with freedom of marriage, from the provisions of paragraph 2 of this article, only the plot of "causing the death of the victim" is regarded as an aggravated constitution. Therefore, according to its legislative intent, serious injury caused by violence is also included in the basic constitution of the crime of violent interference with freedom of marriage in Article 257 of this Law, which belongs to the category of "handling after informing". Secondly,