On The Crime Of Kidnapping

The crime of kidnapping is a kind of extremely dangerous violence crime. There are many theoretical and practical contradictions as to this crime. On the basis of the content in Article 239 in The Criminal Law and judicial practice, this paper rediscusses difficult issues in judicial identifying around the determination of constructive elements of kidnapping crime so as to contribute to perfecting legislating against kidnapping crime in our country.Determination of the object of the crime is the chief element to decide harm nature of the crime action. The author of this paper argues that the object of kidnapping crime is a "complicated object". First of all, kidnapping crime has a distinctive characteristic, that is, double victim with "practical victim" and "material victim". This characteristic means that kidnapping crime violates a double social relationship. Secondly, the motive or final purpose of any kidnapping crime is not to violate the personal right of the hostage but to force the third person, against his own will, to satisfy the offender's unlawful requests. Therefore, the complicated object of kidnapping crime not only violates the hostage's personal freedom but also the third person's right to self-determination.On the objectivity of kidnapping crime, the author believes that, in the first place, the important condition of objective action of kidnapping crime displays as compound actions, that is, the offender not only implements an action of "kidnapping" but also an action of "extorting or asking for unlawful requests"; in the second, there is a variety of kidnapping methods. Besides violence, coercion and anesthetizing, there are also seducing, cheating and other means; and in the third, kidnapping crime does not necessarily mean that the hostage has to be kidnapped to another place. As a result, "kidnapping action" should be defined as: all actions of keeping the victim as a hostage against his own or his guardian's will under the offender's control.As for the subject of kidnapping crime, the writer notes that, people over 14years old and under 16 years old should take criminal reasonability if they implement kidnapping. However, before the law is renovated, those subjects should be punished with intentional murdering crime supposed they commit kidnapping and killing the hostage.On the subjectivity of kidnapping crime, the author believes that kidnapping crime goes out of direct intention, while indirect intention and negligence should not form this crime. In addition, "extorting money and requiring other unlawful benefit" should not only include subjective content but also display to be objective purpose and action.On identifying the determination of criminal patterns of the crime, the writer demonstrates that the successful commitment of kidnapping crime should be based on two actions: an action of implementing kidnapping and an action of requesting unlawful benefit from the third person. According to this, even if the kidnapping is implemented, but the hostage is set free by the offender willingly before he extorts money or requests unlawful benefit, this should be identified as desistance from offense.In judicial practice, due to the complexity of kidnapping crime often with murder, injury and robbery, etc, numbering crimes and determining the nature should be handled with regard to different situations. On evaluating determination of aggravating consequences of the crime of kidnapping and legal crime, the author holds mat there must be direct criminal cause-and-effect relationship between kidnapping action and death as for the case "leading to death of the hostage". In legislation, absolute unconditional application of death penalty without regard to causes of death would violate the criminal law principle of correspondence of crime and penalty. "Murdering the hostage" should be happening whenever during the hostage is illegally controlled and must be with effect of killing the hostage.In short, the author suggests that the expression of article 239 in The Criminal Law "kidnapping others as hostage and requesting unlawful benefit from the third party" is adequate to generalize all criminal contents of the article. The age range ofthe subject of kidnapping crime should be enlarged to over 14 and under 16. Besides, there should be a rational penalty range for determining the crime. At the same time, the author indicates that it would be more scientific and exact to replace "kidnapping crime" with "extorting hostage crime".