Research On Several Questions About Judicial Practice Of Kidnapping

At the beginning of the legislation towards the kidnapping, discussions about this crime in the theoretical or the practical circles are keeping on. However, due to the reasons that the legislation towards the kidnapping is not perfect, the feature of this crime is complicated or special, etc. There are great divarication and vague understandings for the cognizance towards the kidnapping in theory and judicial practice. What's more, because of the heavy sentencing for the kidnapping, it makes the judicial executants feel embarrassed when they are facing the terminating and sentencing of the kidnapping. I will explore and research some prominently difficult problems in the judicial practice of kidnapping.With previous research results serving as a basis and the integration of different scholars' view points , this thesis attempts to put forward the author's own opinions towards the controversial and tricky issues arising in the discussion by combining theory with practice and aims to promote further research studies and the judicial practice. This thesis comprises three parts.The first part is mainly concerned with the recognition of the accomplished kidnapping crime. Introducing the controversial argument about the recognition of the accomplished kidnapping crime through cases and established on the current law regulations , this part comes to the conclusion that kidnapping is accomplished if it is once done and involves hostage control through the analysis of the objectivity of the kidnapping crime by integrating the criminal law theories of the criminal amend with original cases and evaluating and analyzing various view points of the recognition of the accomplished kidnapping crime.The second part is mainly about the analysis of the constitution of aggravated kidnapping crime. It researches into the comprehension of two aggravated crime cases, 'causing the death of the hostage' and 'killing the hostage', which are involved in the article of the kidnapping crime. As for the case of causing the death of the hostage, the author holds that through the analysis of legal principles the aggregated consequential offence of kidnapping is formed if the death of the hostage is caused by the adoption of violence or by the negligence during the process of kidnapping. When it comes to the case of killing the hostage , the author , basing on the judicial practice and the criminal justice policy in China , expounds his opinion from the perspective of logic induction and legal principles and reaches the conclusion that such case is also the aggregated consequential offence , that is , if the hostage is killed , such crime is constituted.The third part distinguishes the crime of kidnapping from the crime of illegal detention and briefly discusses their distinction from the perspective of their basic difference and the perspective of the analysis of the concrete issue by using some case study. It analyzes the similarities and differences between these two crimes and then makes the distinction between the crime of illegal detention for the recovery of the debt and the crime of kidnapping for blackmail. It finally analyzes in detail the tricky issues encountered in the recognition of the crime of kidnapping from three concrete aspects by combining the difficult cases in the judicial practice.