Confirmation And Application Of The Sentencing Circumstances Of Kidnapping Crime

Since the amendment of the Seventh Amendment to the Criminal Law,there have been more and more disputes about the sentencing of kidnapping crime,which has been amended twice in China.These two amendments add "lesser circumstances" and aggravating circumstances,dividing the sentencing grade of kidnapping crime into three levels in order to meet the requirements of crime and punishment,but in judicial practice,especially the aggravating circumstances of kidnapping crime,it is still unable to form a more unified understanding.Therefore,it is necessary to re-study the circumstances of the crime of kidnapping and the application of sentencing,so as to make the three sentencing grades of the crime of kidnapping more clear.Amendment VII of the Criminal Law adds the following words: "The circumstances are relatively light,sentenced to fixed-term imprisonment of not less than five years but not more than ten years,and fined." However,there is still no explanation for the "lighter plot".The application in judicial practice is also confused,especially whether the incomplete form of kidnapping crime can be used as the basis for the determination of "less serious circumstances".How should the sentencing of the incomplete form of kidnapping crime be applied? In judicial practice,there are often different sentences.Therefore,it is necessary to redefine the lesser circumstances of the crime of kidnapping.The aggravating circumstances of Amendment IX to the Criminal Law juxtapose "killing" and "intentional injury" to the kidnapped person.According to the identity of intentional killing and intentional injury,it is necessary to re-recognize the killing of the kidnapped person.When applying statutory promotional punishment,we should consider its subjective viciousness,means of conduct,object of conduct and harmful consequences according to individual cases,and apply the provisions of lessening or mitigating attempted or suspended offences in the general provisions of criminal law,which not only embodies the spirit of restricting the application of death penalty in China,but also conforms to the principle of compatibility between crime,responsibility and punishment.The object of the crime of kidnapping is a complex object,but it gives priority to protecting citizens' personal rights.The occurrence stage of the object of the crime of kidnapping "killing the kidnapped person" should include the stage of kidnapping and the stage of illegal hostage control.There is no attempted form of intentional injury causing serious injury or death,which should be dealt with according to the crime of kidnapping.The amendment of statutory penalty to "death penalty or life imprisonment" is not an extension of the application of death penalty,but a distinction between the application of sentencing of "killing" and "intentional injury",which also reflects the compatibility of criminal responsibility.The amendment of statutory penalty to "death penalty or life imprisonment" not only reflects the restrictive application of death penalty,but also reflects that the social harmfulness of kidnappers should be considered comprehensively and reasonable sentencing allocation should be carried out.