Kidnapping Crime From The Perspective Of The Criminal Policy Of Temper Justice With Mercy

From the judicial practice in recent years, the crime of kidnapping as a serious violate personal rights and property rights methods of crime (a small portion of nature of non-methods of ), frequent occurs, and be a major resistance which affects the process of building harmonious society. However, the real life kidnapping case is very complex and often the perpetrator after implements kidnapping, pro-active release of the abducted people, and did not result in such as the practical consequences of the situation less serious crimes. The original legislation provided for the conduct penalty from the criminal point is ten years, so in some individual cases, there appears less serious and sentenced to the judicial application of unfair, not only fail to adapt the principles of punishment against the guilty, but also fail to implement the criminal policy of temper justice with mercy,less serious, the lenient punishment inconsistent with the guiding ideology."Criminal Law Amendment (â…¦)"in article VI of kidnapping the introduction of"less serious"has verified that the provisions of the trend of leniency, however, Chinese"Criminal Law", sub-provisions on the crime of kidnapping is still"wide unknown","wide enough","over strict","serious enough"and other defects, such a situation affects not only the Judicial Department of the kidnapping convicting and sentencing for accurate and easy to lead less serious and sentenced to judicial injustice, responsibility and punishment suited the extreme situation, it is difficult to achieve prevention of criminal law norms in general and special prevention function.Therefore, the kidnapping provision be improved.In the first chapter briefly introduct the criminal background and the implementation of policy formation should persist in principle of legality,principle of unity of subjective and objective,principle of guilty suiting and results-oriented principle and so on . On this basis, combined with the provisions of kidnapping, concluded that: the crime of kidnapping is the criminal policy"strict"the object, and set penalties for kidnapping a prominent problem in general is"wide unknown","wide enough""too strict","serious deficiencies", the following will analyze the defects one by one and the corresponding solutions.This chapter first reduce the kidnapping composition of theory, from the specific crime of kidnapping."less serious"theoretical positioning, analyzing the"less serious"simple counts of such open-ended description of guiding judicial practice in kidnapping of sentencing flexibility and elasticity, even if such value judgments will be flexible,"less serious"and the right identified by the trial judge discretion of cases, we can use Supreme People's Court and Supreme People's Procuratorate the appropriate judicial interpretation issued to standardization, clear of"less serious"for content, limiting their thorough and proceed to realize the balance of crime, try to temper justice with mercy in the spirit of a crime to infiltrate into every article. Clarified the issue, for"minor plot"and correct understanding of the meaning of its essence should start with: the crime of kidnapping"less serious"the essence is based on certain of the fact that constitute elements of compliance - value on the judge. Thus,"less serious"factual basis for the identification, including both content and value judgments. In particular,"less serious"factual basis, should constitute elements of the crime of kidnapping to proceed, upholding the criminal policy advocated by the principles of objective and subjective unity, about the subjective and objective purpose of illegal sexual violence kidnapping combining the define the circumstances of the crime's severity; the perpetrator person who has the crime actions are consistent with the fact that under the basis of the premise, their control, dominated the kidnapped person and violent means, if only the person who was kidnapped will threaten, did not receive the ransom or out made for other illegal purposes has not been met or will meet requirements of the wrongful acts were required to implement the next step after the wrongful act but he did not, and were kidnapped person has not re-appear result of disability or death, serious harm to society is not affected social order, then this level of infringement of legal interest should be the basic counts of kidnapping criterion of value. If the perpetrator of the crimes inflicted upon the human body benefit or interest level of property law was lighter this standard, you are added the"less serious"mitigating circumstances, this is what we are looking for"less serious"applicable standards.This third chapter discusses the four parts of the crime of kidnapping should be how to increase the composition of the interpretation, application and improvement. Section I first expounded the"causing death by kidnapping"of the provisions of the results is increasing; Second, Chinese scholars on the understanding of this provision there are two views:the view that"resulted in kidnapping death"means"in the kidnapping violence used in the course caused the death of the kidnapped person and completely due to the fault situation of the abducted people were killed."Another view was that"resulted in kidnapping death"refers to the perpetrator intentionally hurt during the abduction who was kidnapped as a result of their negligence causing death or kidnapping people were killed and kidnapped people for income shock, unbearable shame, unbearable pain and other reasons to commit suicide."The author believes that"resulted in kidnapping death should be restricted as intentional injury death of the kidnapped person caused by negligence, about an actor who died as a result of the subjective apply tothe provisions of sin evaluation criterion. Behavioral measure of kidnapping people,"the result of death at fault"standard is the result of death, the perpetrator did not foresee the possibility of the occurrence. In Section II,"lead to death of the kidnapped person,"be properly understood, based on the author from the subjective guilt, penalty function and the prevention of criminal justice with mercy in substance the policy argument in four areas that should be"lead to death of the kidnapped person"principal penalty adjustment for life imprisonment or death. Section III for the other aggravated kidnapping counts,"killed the abducted people,"Chinese criminal law field for its characterization of mainly the following observations: The first view is that this provision is increased results; the second view is that"killing abduction"and is aggravated offense; a third view is that criminals are inclusive, these three perspectives are not very reasonable. The fourth view is endorsed by the author is that the combination of abduction murder is committed, from the first implement the kidnapping, after the implement the intentional killing of kidnapped combination of the behavior. Section IV in the clear legal nature of the kidnapping after the killings, the author analyzed the"killing of kidnapped people,"attempted to sentencing issues. There are four views on this country, I believe that kidnapping attempted murder, should also apply to"criminal law"in sub-section 239 article"kills the kidnapped person, the death penalty"provisions and"criminal"General on attempted to crime committed reduce the punishment from the more scientific and reasonable requirements. In summary,"kills the kidnapped person,"attempted, shall be sentenced to life imprisonment or death, suspended for two years;"killing of kidnapped people,"consummated, is still absolutely determined for the original death penalty.Chapter four scholars present second paragraph of the kidnapping understanding and application of the differences as the starting point, simply summarizes the result of"baby theft"crime for different purposes, and identify the nature of their actions and legal evaluation of different; the"theft"means a qualitative difference; others hostage areas for infants and young children, the relationship is included or excluded relationship; on the"baby theft"of legislative acts in four different interpretations of the evaluation focus of controversy. Differences and to summarize the four common is the lack of kidnapping second paragraph after the word punished in accordance with the provisions of the preceding paragraph, correctly understood by the express provisions of the first conviction for the first case and in terms of provisions should be implied into the crime situation as a punishment in accordance with the provisions of the preceding paragraph, the application of two provisions should be included between the relationship and being included. Ultimately I believe that in response to the crime of kidnapping in order to extort property for the purpose of stealing baby situation, given a heavier punishment, both the implementation of the criminal policy, felony strict punishment requirement, but also to achieve a balanced sentence similar charges.This function of the fifth chapter of property, pros and cons of such theories as the basis, listed property punishment of kidnapping in the configuration "over strict" not reasonable to draw a new configuration of property. Specifically, one is the property of their unreasonable penalty for non-menthods provisions of kidnapping, unfair and fair. The reason is the clear purpose of the crime of kidnapping the type and scope of criminal property, the non-menthods of abduction, the perpetrator is neither subjective purpose of illegal possession of property of another (non-menthods of), and objectively obtained from others without of property, while the perpetrators of this case subjects to free criminal punishment or even life punishment, while still unconditionally, any errors of law and impose a sentence of property equity and justice, and this tendency to not speak of the principle of severe punishment from the aggrevated against kidnapping, and criminal policy of leniency and strict unity of subjective and objective principles to be followed not match. The second is the property with a lighter punishment, mitigating circumstances in sentencing relations mishandled. The grounds that neither the original distinction between the legislative purpose of the crime of kidnapping shall be applicable to criminal property, must also system of property criminal legislation model also has serious flaws, but the legislation is not applicable to the property to set the appropriate grade penalty. The third is the property of criminal legislation and the principal penalty configuration mode is not scientific. The system will not only does not implement the legislative mode of punishment leisurely, but also failed to comply with the criminal responsibility and punishment policies advocated by the corresponding principle, what is more, important is to make the property appear in criminal justice practice of empty sub- rate, low rate of implementation of the dilemma, it is difficult to temper justice with mercy expected social effects of criminal policy. Therefore, the response to the crime of kidnapping in the property re-configured to provide for punishment.At this point, look at the full text, in the criminal under the policy guidance to address the existing provisions of the existing crime of kidnapping wide unknown, wide enough, over-strict, serious enough and other defects, the following amendments and improvement:Kidnapping for the purpose of extorting property of others, term imprisonment or life imprisonment, may impose a fine or confiscation of property; for other illegal purposes to others as a hostage kidnapping, term imprisonment or life imprisonment; plot less than five years imprisonment, may impose a fine .Whoever commits the crime, resulting in the death of the kidnapped person, life imprisonment or the death penalty, impose a fine or confiscation of property; kill the kidnapped person sentenced to death and confiscation of property.For the purpose of extorting property theft infants, in accordance with the provisions of the preceding two paragraphs, shall be punished severely.