A Number Of Problems. Of Kidnapping Study

The crime of kidnapping is a new-added charge in our actual criminal law. According to judicial practice of the new criminal law, the commitment of the crime of kidnapping , whose probability goes up along with the continuous growth of our country' s economy, has become one of the familiar serious crimes in recent years. The criminal behaviour infringes the other citizens' personal right, property right and the other rights, disturbs social peace and poses a menace to the economic system and living order of our country. So these conducts should be chastised legally.At present, owing to the faultiness of the legislation of the crime of kidnapping and complicacy and particularity of the characteristics of crime of kidnapping , there are considerable divarications and vaguer cognition on the crime of kidnapping theoretically and practically, which further brings on certain imbalance on judicial appliance: the same behaviour may be treated differently. This urges us to attach more importance to researches on the cognizance and punishment of the crime of kidnapping, especially on questions like how to define the essential characteristics and constitutive requirements of crime of kidnapping ,how to distinguish one crime and plural crimes committed by one person on crime of kidnapping and how to punish the defendant of crime of kidnapping suitably. In this dissertation , the author tries to combine the real case in the judicial practice to discuss the difficult questions on the crime of kidnapping.The dissertation has six chapters.On the first part, we make the positive analysis on kidnapping crime on the base of 100 criminal cases of kidnapping. From the angle of the gender of offenders, the career of offenders, why they commit crime and the social relationship between offenders and kidnapped, we analyze the characters of the kidnapping crime, to make sure that the readers can understand this kind of crime more easily and clearly. The second section is on the accusation of kidnapping crime. The section, expounds the legislative evolution of kidnapping accusation, the main arguments on the accusation in the theory (one accusation, two accusations and three accusations) and the reasons as well. The section makes a comment on the arguments and the author points out the necessity and reasonability of only one accusation is the most suitable.The third part is about the constitutions of the crime of kidnapping. The criminal object of kidnapping is complex object. Kidnapping is infringing citizen's rights of physic freedom, health, life, and property. Though specific analyzing , the article finds the action of kidnapping with purpose of extorting property has infringed other person's right of physic freedom, health and life as well as property rights, but the action of kidnapping with purpose of making the kidnapped as hostage has only infringed other person's rights of physic freedom, health and life. Therefore personal right is the main object of kidnapping crime. Objective element of kidnapping appears as the action of offender using force, intimidation, anesthesia or other means to kidnap other person. Other means indicate actions of using the means except force, intimidation, anesthesia to make the victim ignorance of revolt or incapable of revolt. Whether a deceptive behaviour can be recognized as a crime of kidnapping depends on the specific situation and to commit a crime of kidnapping does not always require the displacing of the kidnapped. The subject of kidnapping is general subject, that includes natural person who has attained the age of 16 and has capacity for criminal responsibility. According to the subsection 2 of article 17 in Criminal Law of the People' Republic of China, the person who has not attained the age of 16 needs not to be responsible for kidnapping. And, should the person between the age 14-16 who has made the kidnapped death or has murdered the kidnapped in the course of kidnapping bear the criminal responsibility? It ought to be punished according to the crime of murder. On the other hand, it is necessary to make the legislation concerning kidnapping perfect and then to prescribe in subsection 2 of article 17 in the Criminal Law that person who has attained the age of 14 should take criminal responsibility for kidnapping.On subjective aspect, the author describes the subjective content of kidnapping crime and how to deal with two special situations.The fourth part is on the completed crime, the attempted crime and the discontinuation of crime. On the basis of the exposition of the objective respect of the crime, the article analyzed the main disputes in the theory and practice such as the criterion of the completed crime. This section also talks about the quantity of crime concerned with kidnapping crime. It expounds the quantity of the crime in the legislation of kidnapping. In addition, the section sums up several types of the crime with quantity of the crime, and points out the principle of the quantity on every condition.The fifth part is on the weighted constitutions of the crime of kidnapping. The author tells us how to understand the meaning of "make the kidnapped dead", the meaning of "kill the kidnapped", and analyze the difference between them. The weighted constitutions also include some other situations, such as hurt the kidnapped crucially.The last part is about how to perfect legislation of crime of kidnapping. Fixed-term imprisonment of 10 years as the lightest punishment and the absolute death penalty are not in accordance with other articles of Criminal Law and also can not accord with the principle of suiting punishment to crime and criminal responsibility of Criminal Law .So the article 239 should be given modification for improvement.