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In the innocent defense of the crime of extorting extortion, the argument of "illegal possession" is both a logical starting point and the core issue of the whole case. As a crime of "infringement of property", "the crime of extortion" requires the perpetrator to subjectively to "illegal possession". If the perpetrator has reasonable grounds to believe that his or her legitimate rights and interests have been violated, and therefore ask the relative party for financial compensation, even if the objective behavior is slightly extreme, and threats and other means are taken, the crime of extortion cannot be determined. At the same time, defense attorneys should carefully discern whether there is a causal relationship between “threat behavior”, “threat” and “payment”. The two sides did indeed reach a solution through negotiation, or the relative party deliberately created the evidence of "extortion and extortion". It does not belong to "delivering property based on fear" and does not constitute extortion.

origin

In recent years, cases of negotiating rights, going to Beijing to petition, and asking for compensation for the crime of extortion have emerged in an endless stream. On the one hand, the state is paying more and more attention to the protection of citizens' private rights. The central government also prohibits the use of criminal means to intervene in economic disputes. On the other hand, the legal network is strict. It seems that as long as you "require money", when you ask for money, "threat", " After the threat, "give money", the elements of the crime have been achieved, it seems that it can be convicted. There are different opinions, and the scale of the referee is not uniform. Not long ago, the author handled a case of "agricultural electrician" who was compensating for the crime of "extortion and extortion" and twice tried it. The author pleaded not guilty. In view of this, the author briefly summarizes the innocence defense ideas of “requesting compensation type” extortion (or “defense type” extortion”.

Thought

First, subjective aspects: "Illegal possession for the purpose", "criminal intention" is established, you need to carefully screen.

In the innocent defense of the crime of extorting extortion, the argument of "illegal possession" is both a logical starting point and a core issue. As a crime of "infringement of property", "the crime of extortion" requires the perpetrator to subjectively to "illegal possession". The perpetrator has reasonable reasons to believe that his or her legitimate rights and interests have been violated, and therefore asks the opposite party for economic compensation. Even if the objective behavior is slightly extreme, and the threat is taken, the "extortion of extortion" cannot be determined. In practice, you need to pay attention to the following issues.

First, the claim for compensation must have a factual basis, a factual basis, and cannot be fabricated in a vacuum.

The so-called "factual basis" refers to natural civil disputes, such as labor disputes, demolition and resettlement compensation disputes, consumer rights protection disputes, and so on. If there is no real dispute, it is easy to be identified as subjectively with "illegal possession purposes". In the face of customer consultation, the author often cited an example: eating noodles in the restaurant, the monks are not prepared, hiding a "small strong" in the bowl, asking the owner for huge compensation, otherwise the complaint is extortion; eating noodles in the restaurant In the bowl, there is a "small strong" one, asking the owner for a huge amount of compensation, otherwise it is a act of defending rights, asking for compensation is too high, it is excessive rights, not a crime. Therefore, whether the factual basis is established is the core issue of the "illegal possession purpose" debate.

Second, the reason for claiming compensation is positively related to the underlying fact.

If there is a civil dispute in the objective, but the claim for property is not based on the civil dispute, but is based on other reasons, it may constitute extortion. For example, the perpetrators petitioned on the grounds of compensation for land acquisition. When negotiating with local officials or village leaders, it is easy to be identified as extortion because it exposes its “corruption” and the relative party pays because of fear.

Third, there must be a certain legal basis and reasonable basis for claiming compensation.

The so-called "legal basis" refers to the civil and administrative legal basis for the actor to claim compensation. Defence lawyers should stand in the perspective of the parties and carefully demonstrate the legitimacy of the perpetrator's claims. The view that "criminal trial does not hear labor disputes" and "criminal trial does not hear compensation for demolition" is wrong: criminal legal analysis must be inseparable from civil and administrative legal analysis. The fundamental reason is that criminal law is the last guarantee of other departmental laws. law. The logic implied in investigation and prosecution is often that the actor “requires compensation for “no reason” and infringes on the public and private property rights. The defense must of course analyze, reason and refute the logic. The argument is not “no reason to ask” but “ There are reasons for this." At the same time, it should be realized that the legitimacy of the argumentation does not mean that the actor must obtain “one hundred percent” on the basis of law, or achieve the degree of “winning the case” in civil litigation; as long as it is based on common sense, common sense, and common sense, From the perspective of ordinary citizens, it can be said that the actor has reason to believe that his or her legitimate rights and interests have been infringed, and then the degree of compensation is required. The author's point of view is not created by the air, interested readers can refer to:

Opinions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Robbery and Robbery of Criminal Cases (Fa Fa [2005] No. 8):

"VII. Qualification of the looting of specific property: the looting of gambling funds and the proceeds of crimes is convicted of robbery, but the perpetrator is only robbed by the gambling or winning gambling debts, and is generally not convicted of robbery. Penalties. Those who constitute other crimes shall be punished in accordance with the relevant provisions of the Criminal Law."

Opinions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Robbery and Robbery of Criminal Cases (Fa Fa [2005] No. 8):

"5. The boundary between robbery and intentional assault, the act of claiming debt, using violence, threats of violence, etc., generally not conviction and punishment for robbery. If it constitutes intentional injury and other crimes, according to the Criminal Law 234 Articles and other provisions impose penalties."

Article 238 of the Criminal Law:

"Illegal detention of others or other methods of illegally depriving others of their personal freedom shall be punishable by imprisonment for not more than three years, criminal detention, control or deprivation of political rights. Those who have been beaten or insulted shall be given a heavier punishment. ... illegally detained for the purpose of obtaining debts, detaining others , according to the provisions of the first two paragraphs."

The Supreme People's Court's Interpretation on the Issue of Conviction of Unlawful Detention of Other Debt for Unprotected Laws provides:

"If the perpetrator seeks a position that does not protect the law, such as usury, debt, etc., illegally detaining or detaining others, it shall be convicted and punished according to Article 238 of the Criminal Law (illegal detention).

The legal principle of the above provisions is: to determine that the perpetrator has the subjective intent of the crime, and to have evidence that the perpetrator has subjectively knows that he has no basis for the property, and that the intention is illegal for himself; from the fact that the facts of the crime are clear and the evidence is sufficient The evidence standard shows that the evidence of subjective dissatisfaction must reach the level of “confirmation and fullness”; and the perpetrator may subjectively exist for the property with certain factual basis, certain legal basis or certain common sense. Fuzzy understanding", the basis for its subjective "illegal possession purpose" is insufficient. For example, even the debts that are not protected by the law (usury) are, in the eyes of ordinary people, “debt” (“debt paying back money, justification”). Therefore, the argument of "illegally possessing purpose" must demonstrate the legitimacy and rationality of the perpetrator's appeal.

Fourth, the civil dispute has not been resolved until the perpetrator asks for compensation.

If a civil dispute has been based on the voluntariness of both parties and the relevant agreements and plans have been reached and fulfilled, the perpetrator believes that the "head" is good and continues to ask for compensation, which is easily identified as extortion. On the other hand, if the civil dispute has not been resolved in substance, or if an agreement is reached, but there is evidence that it is not the true meaning of the party, it may be fraudulent, coercive, and contrary to the principle of fairness and justice, it still cannot hinder the legitimacy of the claim. Reasonableness cannot be considered as "illegal possession purpose".

In summary, if the claimant’s claim for property has a factual basis, a legal basis, and a common sense basis, then subjectively, it does not constitute an “illegal possession purpose”.

Second, the objective aspect: the legality argument of "threat behavior".

In general, "evidence-type" extortion cases will certainly have evidence that the perpetrator has carried out some "threat" behavior, otherwise it is difficult to file a case. So, is it as long as "threatening" and "giving money" is "extortion and extortion"? No.

First, when analyzing the "threats" means and behaviors, do not break away from the legitimacy of the claims. If the appeal is lawful and the threat is legal, then it does not constitute a crime. It is a typical act of defending rights; if the claim is lawful and the means are too aggressive, it still does not constitute a crime. In other words, based on the "illegal possession purpose" is not established, all the way to the past, do not fall into the "just in the matter", one-sided interception of the misunderstanding. That does not conform to the principle of "unification of subjectivity and objectivity."

Secondly, "popping" and "journalist exposure" should not be regarded as a means of "extortion" in criminal law. The right to petition is a right granted to citizens by law; the national constitution and laws protect citizens' freedom of speech. In the case where the purpose is legal and the means are also legal, it does not constitute a crime.

Third, causal relationship judgment: pay attention to identify whether the opposite party is "delivering property based on fear."

In practice, the objects of “blackmail” are often corporate companies, “large taxpayers”, and some are governments at all levels. From the perspective of the strength of the two sides, the understanding and use of the law by these units and the mastery and use of judicial resources are far from comparable to those of the civilian population. In fact, some "victimized units" are deliberately making evidence of "extortion and extortion" ("Criminal Judgment Reference", 64th episode "Xia Mo Li and others extortion case"). The defense lawyer should combine the reporting materials of the “victimized unit”, the time of reporting, the “question transcript” and the “call recording” to restore the entire process of contact and negotiation between the “victimized unit” and the actor, and explore the information beneficial to the party. Truncating the causal relationship between “threat behavior” and “payment outcome”. For example, in the process of negotiation, some “victimized units” have the initiative to deliberately guide the actors to convert “disputed settlement” into “requesting for property”, and then convert “request for property” into “extortion”, but it is more concealed. . If the defense lawyer finds this situation, he should clearly point out to the court that it is the justification for the defense of innocence.

In addition, you should pay attention to the idea of preventing the "two-head plug": either blackmailing the unit or extorting the company's leading individual, there is always one for you. If the “victimized unit” party designates the relevant responsible person, company leader, etc. to negotiate with the perpetrator to resolve the dispute, it can be regarded as representing the will of the unit. If the actor and the company representative negotiate for compensation, it should be a dispute settlement and no more than civil disputes. category.

Conclusion

As a complete defense program, defense lawyers can also work from the perspective of criminal object, modesty of criminal law, and case retrieval. "The soldiers have no regularity and the water is inconstant." The defense should be tailored to the circumstances and tailored to the local conditions. The specific defense plan should be adjusted according to the facts and evidence. In particular, the facts involved in this article are based on judicial practice, summary of refereeing documents, induction, and assumptions.

Lawyer Li Changyong: Master of Law, Partner of Tianjin Bo Law Firm, Director of the Center for Criminal Defense and Economic Crime Research, Member of the Chinese Law Society, China Law Society, “Excellent Criminal Defence Counselor”, Case of Innocent Defence Selected in China University The Classic Case of Lawyers (2017), published by People's Daily Press, the Outstanding Speech Award of the “Legal Pioneer” Young Lawyers Competition in Tianjin, and the Best Speaker of the Group Final Award.

Lawyer Li Changyong specializes in criminal defense and handles hundreds of criminal cases. So far, there are seven innocent referees (note: the national acquittal rate is about 0.06%), of which three are guilty of innocence and two are not guilty of rape. The misappropriation of funds is not guilty, the bribery is not guilty, the case is withdrawn, the lawsuit is not prosecuted, the criminal punishment is exempted, and the second instance is changed.

The Center for Criminal Defense and Economic Crime Research was established in 2018. It is committed to the research and practice of criminal defense. Corporate crime, market economy crime, and major crimes of infringement are the key research directions of the Center.