Research On Several Questions About Kidnapping

As a serious violent crime, has been increasing on the theoretical and practical sides of the controversy since its was set as a formal crime in《Criminal Law》1997.The formulation of kidnapping in the new《Criminal Law》met the judicial practice needs in which the frequent occurrence of the crime of kidnapping. However, the theoretical research for the crime of kidnapping is not sufficient compares of its frequency and its seriously harmfulness, even the legislature also has certain drawbacks. This situation will inevitably lead to difficulty of accurate judgments of kidnapping in the judicial practice, it also will hamper the efficiency on the punishment and prevention of the crime of kidnapping.The theory of the constitution of crime is the fundament of criminal law theory, so the research on kidnapping should also be based on the constituent elements. Indeed, the crime of kidnapping is a very complex crime, and there are many issues worthy of discussion, the crime of kidnapping, which was involved in the offense——the expression of kidnapping charges, accomplished standards and heavier form also deserves serious study. But limited to the length of the writing , the author chose only three aspects of the constitution of crime of kidnapping to talk about : Object,Act and PurposeThe first chapter is the object of the crime of kidnapping. Since the kidnapping, including "extortion" and "hostage-taking", this chapter first expounded on the common features of the direct object of the crime of kidnapping. respectively against the two types of kidnapping explore the different characteristics of the object. According to the criminal acts violated the amount of specific social relations, the direct object of the object can be divided into simple and complex objects. The object of the crime of kidnapping and theoretical "single object" and "complex objects" and "coexistence" three viewpoints. First, the author comments that were three viewpoints, and their support for "complex object that the" basic reasons : First, the crime of kidnapping necessarily violated the personal freedom and other personal rights, The perpetrator of the crime but also because different purpose, certainly violated the property rights or other rights and interests. Under any circumstances, from the crime of kidnapping in violation of the interests of two or more specific law, the crime of kidnapping is not a single object. Therefore, the crime of kidnapping is a complicated object, but according to "extortion - kidnapping" and "hostage-type kidnapping" of different types. The object has different specific violations. Section II discussed in this chapter of "kidnapping-extortion," the object of the crime : not only a violation of private property ownership rights. also infringes on the personal rights of others, according to the main object of legislators object to the complexity of the specific criminal violations classified.As legislators values, the object of the crime has determined that the distinction between the different primary and secondary standards. Criminal provisions to the crime of kidnapping in 1997 in "violation of civil rights and the democratic rights of crime," a chapter. This shows that the legislators that the main object of the crime of kidnapping is a citizen's personal rights, private property ownership are a secondary object. Section III discussed the "hostage-taking type of kidnapping" of the object: This section of "hostage-taking type of kidnapping," the legislative history of starting. penal provisions of the crime of kidnapping in 1997 joined the "kidnapping of a person as a hostage" of this regulation. Fulfill their obligations under the International Covenant is the concrete manifestation of a country's domestic legislation and international conventions converge. Thus, the crime of kidnapping is not only a violation of the personal rights of others, the third violation of the right to self-determination. This is the harm to society by the decision of the crime, the crime with the aim of the establishment of the Chinese Criminal Law. Chapter II deals with the problem of identifying the crime of kidnapping.To solve the first part of the problem is that the crime of kidnapping in objective conduct, behavior or performance to a single compound? The kidnapping of a person is the implementation of the constituent elements of the crime of kidnapping, and no doubt this test, then extort money or other illegal interests, should belong to the implementation of the constituent elements of the crime of kidnapping? In this regard, the theoretical existence of "a single act" and "complex" dispute. This writer's viewpoint is : According to China's Criminal Law, the crime of kidnapping is the implementation of a single, specific content based violence, coercion or other means kidnapping others, extort money or other requirements of the act is not an integral part of the implementation of this crime. Another focus of this chapter is to discuss issues including the abduction of the crime means what in the end. Means for the kidnapping, the Supreme People's Court gave a restrictive interpretation that clearly requires the use of "violence, coercion, and Narcotic "approach. But in recent years, especially after the promulgation of the new Penal Code, the majority of scholars believe that the crime of kidnapping means should not be limited to "violence, coercion, Narcotic "three, including deception to lure other methods. This auther's viewpoint is : a serious infringement of personal freedom because of the crime of kidnapping and endangering their own lives and safety of others. So there is a serious violent crime; But on the other hand we can not because violent crime is the crime of kidnapping. and the crime of kidnapping in limiting the means of "violence", turn away from the violence will be excluded from the acts of hostage-taking or kidnapping crime of violence away from the far-fetched to explain the violence. But on the other hand, the crime of kidnapping is extremely harsh punishment to the crime, "violence, coercion, Narcotic "is the" other means "and unsuitable for wide interpretation. This also involves a kidnapping and extortion as a matter of degree. On the degree of violence involved in the crime of kidnapping, the general level of violence are not subject to any restrictions, Out of the injuries can be directly intentional acts, but also for allowing or even death can be the result of the killings occurred. As for the kidnapping and acts of violence were used against the method, which means that direct violence against the target. Generally speaking, the approach is mainly directed against the perpetrators of violence were kidnapped person's body. And the people in order to ensure the smooth conduct of the hostages and hostage-taking acts of violence other than the crime of kidnapping a crime only to be punished rather than a graft.However, in order to remove the obstacles and deliberately causing harm to people other than their hostages and the killing of hostages killed or disabled person other than the circumstances, should be in accordance with "Imaginative Concurrent Offense" theory of human behavior with intent to injure or voluntary manslaughter conviction punishable offense. The third chapter finds the problem is the purpose of the crime of kidnapping. The purpose of the crime of kidnapping, first of all, to solve a problem, whether one offense, whether or not it could encompass more than one purpose? Because some academics have suggested a dual purpose, that is, seizure of property and extort money coexist. In this regard, the crime of kidnapping is a "indirectly committed" that the act of kidnapping in the implementation of End (Elements acts), need to act to achieve criminal acts of third persons extortion purposes. For this, there are scholars who believe that kidnapping is a basic component element of the crime of kidnapping, If the basic act as a crime is a crime, this does not confuse the objective elements and the limits of subjective elements, but this way, almost all can be said to be a deliberate crime includes dual purpose. I believe that there must be some truth in the criticism, but a criminal purpose has two meanings. Objective purpose of committing offenders can be divided into direct and indirect purpose of committing. Kidnapping is a "indirectly committed" that the act of kidnapping in the implementation of End (Elements acts), need to act to achieve criminal acts of third persons extortion purposes. From that perspective, Criminal Law expressly provides for a specific purpose is the establishment of conditions for the crime, "and committed" a direct and deliberate crime in general criminal purposes, hierarchical structures and the realization that there are some differences in other areas. Based on the above understanding, I believe that the crime of kidnapping of "dual purpose" has to be a more in-depth theoretical study, not absolutely sure or rejection. On this basis, for the purpose of the crime of kidnapping. that could constitute the crime of kidnapping in which the special status of the following : on the one hand, Article 239 of the Penal Code for criminal purposes is required by the elements that are necessary for the establishment of the crime of kidnapping. its existence is determined by the crime of kidnapping is not the important standards; the other hand, Section 239 of the Penal Code so that the description of the crimes committed crimes as indirectly, "more than the subjective elements." that is over the scope of the objective facts, or that do not require the existence of objective facts correspond with the purpose. The reality is not made illegal demands for the establishment of the necessary conditions for this crime. The crime of kidnapping his talent is essential for the establishment of conditions. The crime of kidnapping for the purpose of the specific contents should be understood from the following two aspects: First, extortion of property is limited to "third person"; Second, attempted blackmail and extent of the property to be "significant." Finally, the purpose of the confirmation that a distinction should be drawn between the situation of the three different cases to be analyzed.