| The crime of kidnapping is important in the fourth chapter of the criminal law.The traditional crime of kidnapping often infringes upon the interests of person and property,so the minimum standard for criminal prosecution is relatively high,usually more than ten years.However,with the occurrence of various types of kidnapping cases,such as the case of Yu Zhigang,the voluntary release of hostages is different from the traditional crime of kidnapping and does not seriously infringe on legal interests.So,to conform to the development of the society and demonstrate the principle of balance between crime and punishment,the amendment Ⅶ of the criminal law of the People’s Republic of China(hereinafter referred to as the amendment Ⅶ of the criminal law),passed in 2009,amended the statutory punishment for kidnapping.By reducing the minimum punishment from ten years to five years,the amendment makes the legal punishment system for kidnapping more scientific and reasonable.However,defects still exist.Firstly,there is a lack of clear and specific judicial interpretation on the determination of " alleviative circumstance" of the kidnapping crime;Secondly,in terms of related papers,there is no unified standard for the determination of the " alleviative circumstance" of the crime of kidnapping in the academic circle.Moreover,most of the papers focus on the years when the amendment Ⅶ of the criminal law was published,and few scholars have conducted research on related issues in recent years;Finally,in the relevant cases,there are not enough guidance cases to give a more specific judgment standard for the determination of " alleviative circumstance",which also leads to the different determination of " alleviative circumstance" in the trial practice,thus leading to a significant gap in the sentencing.Compared with other countries’ relevant laws on the crime of kidnapping,although there is a lack of relevant laws on " alleviative circumstance",there is still relevant legislation on the release of hostages,which can be used as a reference for the determination of " alleviative circumstance" in Chinese judicial practice.This paper aims to 2016-2019 written judgment,the court said a kidnapping case " alleviative circumstance" to sum up,the more sufficient sample data support for the judicial authorities decided that " alleviative circumstance" focuses on the factors,and summarizes the possible problems in the judicial cognizance,by analyzing the related problems to put forward a relatively reasonable solution or explain the direction.In this article,through the empirical analysis,and multivariate linear equation calculation methods such as court found in that " alleviative circumstance" existence and other sentencing plot cross and confused with intentional crime form,do not have a unified standard,repeated evaluation problem,the root of these problems is by kidnapping “alleviative circumstance" positioning system is not clear,the fuzzy judicial cognizance standard and applicable order confusion caused.The solution to the judicial determination of " alleviative circumstance" of kidnapping crime first needs to determine the system positioning of " alleviative circumstance",to avoid confusion with other sentencing circumstances or intentional crime-stopping forms.Secondly,it is necessary to clarify the specific content of the crime of kidnapping.In this paper,the crime of kidnapping is described from two aspects,that is,the crime of kidnapping has two parts: positive form and negative repulsion.Crime causes,the release of the hostages and caused no more than minor injuries,and did not cause serious economic losses of criminal consequences,that several factor could be a positive factors of kidnapping " alleviative circumstance",and many kidnapped,kidnapping means bad behaviors in the process of the high degree of violence,kidnapping,and serious consequences,etc.Several factors are excluded,as the exclusive factor appears,even if there are positive factors that cannot constitute a kidnapping " alleviative circumstance".For the positive factor and the exclusion factor,it is roughly in the order of time,that is,the cause-kidnapping means,the behavior in the kidnapping process and the result.Finally,the judicial practice should unify the order of evaluation to avoid the problem of repeated evaluation.First,to determine whether the crime of kidnapping is " alleviative circumstance";Second,determine whether the actor belongs to the intentional crime to stop the form of criminal preparation,attempt and suspension,and whether there is a statutory sentencing circumstance such as surrender,meritorious service;Third,to determine whether there are other discretionary circumstances of sentencing,the discretionary circumstances of sentencing such as the understanding of the victim excluded from the " alleviative circumstance".In this way,the author tries to find a way out for the judicial determination of " alleviative circumstance" of the crime of kidnapping and reduce the problems faced by the judicial practitioners in the determination of " alleviative circumstance". |
