A Study On The Theory And Practice Regarding Kidnapping

The present study, from the perspective of judicial application, is based on two lines of reasoning:"what is"and"what should be", and, by the method of commentary, expounds on the research question while addressing appropriateness and reasonableness.The present study starts with the"what is"reasoning. Objectively speaking, theoretical study, legislation, and judicial practice are complementary to each other in their joint development when approaching kidnapping. The kidnapping theory has been an impetus to the related legislation, providing a strong guarantee for the correct application to judicial practice. In the same spirit, the legislation and judicial practice regarding kidnapping shape the path of theory development in this regard, which contributes to the increasingly insightful theoretical research in kidnapping. Generally speaking, the subjective element of kidnapping is direct intention, serving the purpose of extorting property or the like; the object of kidnapping is a simple one, namely, a citizen's right of the person; the objective element of kidnapping is kidnapping another person by unilateral dominance and control; the completion of kidnapping is deemed a completed crime. There are conspicuous differences between kidnapping and abducting and trafficking in women and children, robbery, extortion, etc. in the aspect of constituent elements. Amendment VII to the Criminal Law of the People's Republic of China has the newly-added stipulations concerning relatively slight circumstances in the kidnapping article, which is not only a result of theoretical development but also a legislative guarantee to ensure law practitioners to correctly apply the principle of equating punishment with crime and impartially hearing various kidnapping cases. As a matter of fact, the prevailing legislation regarding kidnapping limits the subject to general subject, imposing the death penalty on a kidnapper who causes the death of the kidnapped or kills the kidnapped, and imposing imprisonment for a fixed term of no less than five years on a kidnapper if the circumstances are relatively slight. Such legislation is too simple and obscure. The problems that call for immediate solution both in legislation and theory are: strict definition of kidnapping based on the reasonableness of penalties, and confining the purpose of hostage kidnapping narrowly to illegal or even gravely illegal intent. The present study proposes that four aspects should be taken into account in defining"relatively slight circumstances"in kidnapping from the angle of harm to society. The distinction between kidnapping for extortion and illegal confinement for extortion is a challenging issue in judicial practice, which the present study also probes into with the help of case studies.In a view to developing legislation regarding kidnapping, we should look into the legislation history both at home and abroad and move toward the right direction. The prevailing legislation in this regard, based on"what should be"ideology, incorporates two purposes into one type of kidnapping and imposes one type of penalty accordingly, which not only contradicts with the principle that property-related penalties only apply to economic crimes but also can hardly meet the new demands arising from the current combat against hostage kidnapping. Therefore, kidnapping for extortion and hostage kidnapping should be addressed differently in legislation. The legislation should serve the purpose of safeguarding the personal security of citizens by vigorously striking down kidnapping. However, the prevailing legislation fails to include any stipulation of the case where the kidnapper initiatively releases the hostage after completing kidnapping, so such legislation is ineffective in special prevention and general prevention which are the aims of criminal penalties. Discontinuance as stipulated in the General Provisions of the Criminal Law should be treated separately, and the aforesaid conducts should be deemed special discontinuance. One crime also entangles with another, but qualitative change starts with quantitative change. Scientific legislation should never fail to reflect such relations. In terms of penalties, the links among related crimes should be addressed properly.