Research On Several Questions About Kidnapping

Since the criminal law in 1997 stipulates the crime of kidnapping into theformal legal paper, there are many different points of views on the crime ofkidnapping as a comparative severely forcible crime. This can be seen merelyfrom different interpretations of the constitutive elements of the subject ofkidnapping in the legislative interpretation of the National People's Congressand in the judicial interpretation of the Supreme Court and the SupremeProcuratorate. Nevertheless the question to the crime of kidnapping that isworth discussing is definitely not merely the defining of the range of thesubject of crime. Some other questions, such as how to define the accusationof kidnapping, how to ensure the standard of accomplishment, how to judgingthe modes of conducts, how to comprehending the constitutive elements of theaggravated offense and how to distinguish the similar crimes, are also neededto be researched carefully.Limited to the space of the thesis, the author only confines his discussionon the Range of the Subject of Crime, the Standard of the Accomplishment ofKidnapping and the Constitutive Elements of Aggravated Offense ofKidnapping.In Chapter One, the author talks about the range of the subjects ofkidnapping. It mainly discusses the questions about whether the offenders whoonly have partial criminal liability (14 years old to 16 years old) and commitkidnapping should bear the criminal responsibilities. Upon this question, notonly the legislative body makes the relative legislative interpretation, but alsothe two supreme judicial institutions have made their own judicialinterpretation separately. What is more important is that, firstly, the legislativeinterpretation has not an accurate and consistent conclusion to the question. Itonly regulates that the offenders should be prosecuted for the criminalresponsibility under such circumstance, but has not give a clear regulation onthe offenders who only have partial criminal liability. This also causes thedifferences between the judicial interpretations of the two supreme judicialinstitutions. The two interpretations contradict each other and greatly decreasethe practical function of the legislative interpretation. Secondly, the judicialinterpretations have improved under the precondition of the legislativeinterpretation. They believe that the offender should not only be prosecuted forthe criminal responsibility but be determined different crimes. The authorbelieves that both the two opinions have defects by analyzing them. Lastly, theauthor introduces the theoretical discussions about this question. Similar withthe divergence of the interpretations of law, the scholars also have differentopinions towards it. In view of the practical and theoretical discussions, theauthor draws the conclusion: according to the present criminal law, theoffenders who only have partial criminal liability (14 years old to 16 years old)should not bear the criminal responsibilities. The problem follows is to amendthe legislation. Stipulate the forcible and often-occurring crimes such askidnapping into the Article 17 Section 2,and make it adhere to the developingsociety and changeable criminal phenomena.Chapter Two mainly discusses about determining standard of theaccomplishment of the crime of kidnapping. The general opinion is using thestandard of constitutive elements of crime to judge the accomplishment ofoffense. That is to say that the accomplishment of offense is that the criminalbehavior should possess all the constitutive elements of a crime. The onlydistinguishable symbol between accomplishment and unaccomplishment iswhether the criminal behavior has possessed all the constitutive elements ofthe crime. The one that has is the accomplishment, whereas, is theunaccomplished offense. Hence, we also use the traditional accomplishedtheory as the standard of determining the accomplished offense. Theaccomplishment of kidnapping should possess all the four constitutiveelements of the crime. That is the subject of crime, the object of crime, thesubjective elements of crime and the objective elements of crime. Thecharacters of the subject of kidnapping have been discussed above, so we donot say more than needed. And we generally believe that the subjectiveelement of kidnapping is intention and accompanied by the aim to wringmoney or get other illegal benefits. So we can see that the discussion about thestandard in determining the accomplishment of kidnapping concentrates on theobject of kidnapping and the objective element of kidnapping. The authorsums up the theoretical standards of the accomplishment of kidnapping arethese four opinions follows: "one behavior one object", "one behavior moreobjects", "more behaviors one object"and "more behaviors more objects".And the author agrees on the opinion of "one bahavior one object"byanalyzing them. The author believes that the accomplishment of kidnapping isthat the actor has fulfilled his behavior of kidnapping (harmed the Person andFreedom Rights of the kidnapped)Chapter Three mainly considers the Constitutive Elements of AggravatedOffense of Kidnapping through the research on the interpretations of relativestipulation and the Analysis on the relative articles of law. In Section One,thinking from the point of view of interpretation of law, firstly, the legislatorsregard "causing death to the kidnapped person"as the aggravated condition tosentence the death penalty in order to protect the life safety of the kidnapped.In judging the causality of the action of kidnapping and the death of thekidnapped, we should obey a comparatively strict principal. Unless there is thethird intervening factor causing the death of the kidnapped, the offendershould bear all the criminal responsibilities. Secondly, they believe that"killing the kidnapped person"is the aggravated consequence but not theaggravated circumstance. And they believe that the offenders who causesevere injury to the kidnapped and reduce the kidnapped to utter disabilityshould be punished by the concurrence of penalty of kidnapping andintentional injury so that to make the balance of punishments and crimes.Section two analyzes the constitutive elements of aggravated offense ofkidnapping in the point of view of discussing the articles of law. Firstly, it isbelieved that treating the circumstance of causing the death of the kidnappedand killing the kidnapped intentionally equally with discrimination doesagainst the principal of "proportionate punishment to crimes"; Secondly, theauthor discusses about the constitutive elements of aggravated circumstancesof kidnapping. In practice, there are a lot of crimes of kidnapping that do notcause the death of the kidnapped but have severe social harmfulness. Forexample, injuring the kidnapped through especially cruel means should alsoobey the "theory of plural offenses". However, it is only the expedient measureunder the present stipulation of criminal law. If we take "causing severe injuryto the kidnapped person"as one of the constitutive elements of aggravatedcircumstance of offense of kidnapping, such circumstances need not to be...