Study On The Legislative Defects And Perfection Of Statutory Sentence Of Kidnapping

From the decision on severe punishment of criminals abducting and kidnappingwomen and children published by Standing Committee of the National People’s Congressin1991to the criminal law of the People’s Republic of china in1997, the minimumstatutory punishment of the crime of kidnapping has always been10years all the timewhich has been set higher starting point of the punishment and never to been made anyadjustments through six criminal law amendment. The kidnapping minimum statutorypunishment was adjusted five years in prison by the seventh amendment of the criminallaw of2009, but the minimum legal punishment of kidnapping is still higher thanrobbery and rape and even higher than the social harm of violent crime called intentionalhomicide. In fact, the kidnapping crime situation is in change with the socialdevelopment. Many new cases of kidnapping have occurred in practice, for example, torestore the relationship or to let his wife go home. These new types of cases are so manyand their social harm is higher than the less serious situations of the intentional homicide.The minimum legal punishment of robbery and intentional homicide are only three yearsin prison. The higher minimum legal punishment of the kidnapping is lack of rationalitywhich is not conducive to the internal coordination of the penal system. It is obvious thatthe minimum legal punishment of the crime of kidnapping is still higher.The sanction of property of the kidnapping is lack of rationality. The provisions ofthe concurrence of property punishment no matter what the criminal purpose do notcomply with the basic principle that the property punishment is applied to property crime.So the property punishment is set too rigid and lack of flexibility.The infants who are weak populations need to be protected specially. The sentenceset does not reflect the principles of special protection so that it is unreasonable. Thus thesentence set of kidnapping infant should learn from the aggravated statutory punishmentof trafficking in women and children crime.It is should be concerned that the amendment did not modify the legal punishmentof aggravated statutory punishment of kidnapping. Causing the kidnapped people deadand killing the kidnapped people are different whether in subjective fault or in socialharm. Both cases apply the same legal punishment and do not have any selectable punishment species and penalty magnitude. It is obvious that the scope of the aggravatedstatutory punishment of kidnapping is too narrow and missing other applicable plot.Therefore the aggravated statutory punishment of kidnapping has defective and thelegislation should be refined.By studying the status and characteristics of the legal punishment of extraterritorialkidnapping, the author found the difference between the legal punishment of kidnappingof our country and the legal punishment of extraterritorial kidnapping. Drawing the legalpunishment legislation of other country, the author puts forward some suggestions forimprovement based on national conditions and system our country. We can reduce theminimum legal punishment of kidnapping and adjust it to three years in prison so that wecan ensure the balance of the internal coordination of the penal system. We can cancel theconcurrence of the property punishment set in order to achieve fairness and justice. Thelegal punishment of kidnapping infant should be adjusted to aggravating circumstance sothat we can protect infants specially. We can set selectable punishment species andpenalty magnitude instead of absolute death penalty that we can give some discretion forthe judges. We should cancel the provision that Causing the kidnapped people dead andkilling the kidnapped people apply the same legal punishment and do not have anyselectable punishment species and penalty magnitude and configure different legalpunishment so that their essential difference can be reflected.