The defense does not dispute that the behavior of Lao Li constitutes the crime of unlawful detention, but believes that the case is caused by a legitimate debt for the wages of migrant workers, although Lao Li in the process of debt collection to limit the personal freedom of the victim Lao Wang’s inappropriate behavior, but on the whole tends to be restrained, did not carry out verbal abuse and beatings, and the amount of the demand for debt has not exceeded the limits of the legal claim, taking into account the fact that it has a self-surrender, truthful confessions, guilty pleas and penalties, such as the circumstances of sentencing, and so on. It is recommended that your court, from the perspective of safeguarding the legitimate rights and interests of migrant workers in accordance with the law and effectively maintaining social stability, impose a lighter penalty and apply probation.
The details are as follows:
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First, there is a legal debt relationship between Lao Li and others and Lao Wang, and Lao Wang himself admitted that he owed Lao Li and others 50,000 yuan of wages for migrant workers, and this case was triggered by the failure of Lao Li and others to go to Beijing several times to ask Lao Wang for payment, which is a cause of the incident, and the victim, Lao Wang, should be held accountable for the aggravation of the conflict between the two sides.
Lao Li, “Lao Hao” and others were migrant workers who worked at the victim’s construction site. Lao Wang owed Lao Li and others money, the two sides there is a legitimate debt relationship, Lao Wang himself also clearly admitted that, although the two sides did not reconcile the accounts, but the amount of 50,000 yuan is generally accurate.
The Old King transcript clearly documents that:
“Q. How much do you actually owe the other party for the work?
A: I don’t have a final accounting of how much it is, probably around $50,000 or so.
……
Of this amount, 29,000 yuan was the workers’ wages, 19,000 yuan was the two-month salary of the shift supervisor, and the other 2,000 yuan was the travel expenses and gas money that they had asked me for on these two occasions when they came to Beijing.
……
Q: Are there any major discrepancies, differences in the amount of money?
A: No.
……
Q: How much discrepancy is there in the IOUs?
A: Not much of a discrepancy, about ten percent at most.”
The following conclusions can clearly be drawn from that statement of King Sr:
For one thing, it did owe Lao Li and others more than 50,000 yuan in wages for migrant workers.
Secondly, Lao Li and others had already traveled to Beijing several times before to look for Lao Wang to get the money, but did not get it. (Note: According to what the defender learned from his meeting with Lao Li, after Lao Wang defaulted on his wages, he turned a blind eye to Lao Li and others, and did not answer the phone, so Lao Li and others went to Beijing several times to look for his debts, but to no avail.)
In China’s legal system, the wages of migrant workers have always been given a higher priority than other claims. For example, in the field of construction projects, the wages of rural migrant workers are even prioritized over legally valid mortgages on construction projects.
The legislative and judicial systems have made such provisions not only for the sake of maintaining the correct implementation of the law, but also for the far-reaching consideration of maintaining the stability of society as a whole.
Due to various complex historical policy reasons, migrant workers have been struggling to survive in an environment with a relative lack of social security, and belong to a highly sensitive group of people who are prone to “brittle breaks”.
Giving higher weight to the judicial protection of migrant workers’ wages is also a kind of policy compensation at the national level for the “low rights protection status” that migrant workers have been trapped in for a long time.
Specifically in this case, Lao Wang knew that he owed Lao Li and others money for their work, but he delayed in resolving the matter and went into hiding. While we are opposed to any extreme behavior, as a matter of fact, Lao Wang’s own performance in this matter should bear a considerable degree of responsibility for intensifying the conflict between the two sides and expanding the situation.
Can not say that now into the criminal justice process, Lao Wang in the judicial process to obtain the identity of the victim, the judicial process should be unconditionally biased to protect the rights of Lao Wang. The defender suggests that we should stand on the height of politics and the overall situation, fully clarify the ins and outs of the incident, and distinguish between right and wrong, so as to effectively achieve the end of the case and resolve social conflicts.
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Second, for illegal detention cases caused by legitimate debt collection, how the incrimination standard should be grasped, judicial theory and practice have different voices, such as the official website of the Supreme People’s Procuratorate, the Procuratorate Daily published an article, it is clear that it should be grasped leniently to unlawful restriction of personal liberty for 24 hours to grasp, such as according to the Supreme Procuratorate’s judicial point of view, this case did not meet the standard of incrimination, should not be treated as a crime Processing
The official website of the Supreme People’s Procuratorate reproduced on June 26, 2013, an article originally published in the Procurator’s Daily, “Illegal Detention for Soliciting Debt: Convictions from Three Perspectives”.
The article is clear in its view that the conviction of illegal detention for debt collection requires a comprehensive consideration of the cause, duration, means and harmful consequences of the detention. With regard to the duration of unlawful detention, the Supreme People’s Procuratorate has made the following interpretation of the unlawful detention of a staff member of a state organ who is suspected of utilizing his or her authority to commit unlawful detention: if the duration of the unlawful detention is longer than 24 hours, the case shall be filed. There are no clear legal provisions on the duration of unlawful detention by general subjects. In practice, practices vary from place to place. In the author’s view, the standard of conviction for simple unlawful detention can be determined by reference to the Supreme People’s Procuratorate’s above-mentioned judicial interpretation, which is based on a 24-hour period. In the above case (referring to the case of illegal detention for debt collection, note for the defence), the determination of the time of commencement of the illegal detention should be calculated from the time when the victim was actually “under control”, and not from the time when the debt was collected.
According to Lao Li’s own statement, his control of Lao Wang’s personal freedom lasted six or seven hours. Even according to Lao Wang’s statement, the entire detention lasted only about ten hours. According to the judicial view of the Supreme Prosecutor, this case does not even meet the criteria for incrimination and should not be treated as a crime.
The article, in its original form, is attached for the information of your institution.
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Third, the debt collection behavior of Lao Li and others in this case was generally more restrained, neither the intent to illegally take possession of money nor the idea of harming Lao Wang’s person
As mentioned above, the old king owed Lao Li and other people more than 50,000 yuan of wages of migrant workers, Lao Li and other people in the process of debt collection, the amount claimed from the beginning did not exceed the limit of legal claims, and the object of the debt claim is only pointed to the old king himself, did not expand to his friends and relatives.
Lao Li and others in the process of debt collection, although Lao Wang took rope binding, tape sealing mouth and other excessive means, but the purpose is only to suppress his resistance, and did not have the idea of harming his person.
After Lao Wang promised to return the debt and issued a note to Lao Li and others, Lao Li and others immediately restored Lao Wang’s personal freedom.
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Fourth, Lao Li has mitigating circumstances such as surrender, truthful confession and admission of guilt and punishment
The relevant material, which is more clearly reflected in the file, will not be repeated here.
To summarize, we suggest that your court stand on the legal protection of the legitimate rights and interests of migrant workers, and effectively maintain the stability of the overall situation of the community, handle the case prudently, clarify the ins and outs of the case, distinguish between the rights and wrongs, and apply probation to Lao Li in accordance with the law to deal with the case in a lenient manner.
80后刑事律师的办案手记，专注无罪辩护，反抗者的灵魂从未远去。联系方式：[email protected]
Categories: Criminal Defense Practice | Tags.Migrant workers’ wages，unlawful detention，effective defense，Zhengzhou Criminal Lawyer，legal document，缓刑， | Add a comment(0)
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