On Problems Of Kidnapping In Practice

Kidnapping is one kind of crime that offenses citizen's body freedom and which has serious social harmfulness. At the same time, it is a sort of crime which is argued endlessly among theoretical workers and is also hard to recognize in practice. The theoretical research of kidnapping is of theoretic significance and more profound practical value without doubt. This paper is under the practical experience and lessons from the judicial practice departments, drawing the achievements in research from forefather, combining the methods of semantic analysis and comparative analysis to research"The Kidnapping Case of Liu"in order to recognize the controversial standard of accomplishment in kidnapping and make a deep textual study and essential discuss on the legal nature of"kill the kidnapped person", so as to clarify the dispute and to solve the judicial perplexity in some small way. Other than preface and conclusion, the full paper is totally divided into three fractions.The first part is the basic situation of the case. Summing up two focus of dispute through the introduction of the cause and details in"The kidnapping case of Liu": the understanding of accomplished standard and the legal nature of"kill the kidnapped person"on kidnapping. From the focus of dispute in this case, we can detect the perplexity and puzzle in judicial practice, and it also reflects the embarrassing reality of the theoretical argue endlessly and without authoritative conclusion on kidnapping.The second part is the accomplished standard identity of kidnapping. At present, there are three main typical views in the domestic circles of criminal law: accomplish intended purpose saying, monotonous act saying, multiple act saying. Through the jurisprudence analysis of the object and the behavior of kidnapping, the author believes that the object of kidnapping includes the body liberties of the kidnapped hostage and self-determination of the third party .The kidnapping is a kind of multiple act commit, its accomplishment conduct includes: the act of kidnapping and the act of blackmail money and property or come up with other illegal requests. The accomplishment standard of kidnapping lies in kidnapping others or not and come up with illegal request or not, but pay no attention to the actor's criminal intent realize or not.The third part is the comprehension of"kill the kidnapped person"in kidnapping. For the moment, there are several viewpoints in the domestic circles of criminal law, such as aggregated consequential offence, aggregated plot offence, combinative offence, comprehensive offence, comprehensive-aggregated offence and punish for plural crimes. In theory of criminal law, because the kidnapping in criminal law without revising, the author thinks if we consider"kill the kidnapped person"as aggregated consequential offence, aggregated plot offence, combinative offence, comprehensive offence or comprehensive-aggregated offence , there are inevitable defects, it is lack of jurisprudence basis, or lack of the basis of legislation, or beyond of solving the unaccomplished and crime termination of killing the kidnapped person in judicial practice. In this case of arguing endlessly among theoretical workers and without authoritative conclusion, judicial branch should views"kill the kidnapped person"as the increased composition and an increase in the possible measurement of penalty."Kill the kidnapped person"will be considered as an act of willful killing and pay no attention to the kidnapped person died or not. To the situation of making a vain attempt to kill the kidnapped person, remains apply article 239 in criminal law,"kill the kidnapped person,put to death and confiscated property", and according to the general principle in criminal law of aborted crime to exempt or mitigate their punishment.The four part is conclusion. Summed up two controversial discussions in referred case, recommendations in dealing with similar issues of Kidnapping crime are presented. According to theoretical analysis of the article, putting forward of two legislative proposals in order to improve the kindnap crime.