Research On The Statutory Penalty Of The Kidnapping In The View Of Balance Between Penalty And Crime

The crime of kidnapping is a violation of human rights, with serious social harmfuness, thus it is configured with extremely severe criminal penalty by legislator. But such high statutory penalty leads to the unbalance between crime and the punishment。Therefore it causes the controversial in the theory research, furthermore, there are many problems in the judical practice.In view of this, the author makes a deep research on the statutory penalty by the visual field of the balance between crime and penalty.Firstly, the unbalance of the kidnapping mainly reflect on the following:the punishment is too broad, the kind of punishment is so dull, the situatiation of killing the kidnapped person on the purpose and the negligence to kidnapped person death is unexpectedly configured with the same penalty. But the legislation of such a penalty should not only reflect the background of the times to some extent, and also reflect the publics’will, therefore, the author makes a further study to the reason of penalty’s unbalance, the legislation of the penalty is greatly influenced by the historical tradition, the legislative practice and the ruling class’s legal consciousnessIn the study of unbalance of the kidnapping crime, the second chapter is mainly discussed the theory of the balance between crime and penalty. The purpose of penalty configuration is not simply in the quantity equivalent, the purpose of penalty should not only embody the justice of entity,it should also reflect the function of protecting human rights; criminal punishment is not a simple digital crime and punishment, it should reflect the charactristic of concise language, it simultaneously should reflect the social harmfulness and reflect the behavior of the dangerousness of the person, thereby realizing the balance between crime and punishment.The third chapter is the main part of the thesis, above the two chapter it lies in the kidnapping crime investigation and exploration of the causes, as well as on equilibrium theory of the crime of kidnapping crime is to solve the dilemma. By the cause on the serious configuration of kidnapping crime punishment, the constitutive elements of crime are restrictively interpreted in the judical practice, the objective behavior is limited to"violence, coercion, anesthesia",the extorting object is limited to the third people, the extortion is limited to’huge’property, killing the kidnapped person is also interpreted as"kill the kidnapped person accomplished", the cause to the death of the abducted person is limited to the intentional injury behavior which results in the death of the abducted person, all of the restrictive interpretation is to reach the balance of crime and punishment in the judical practice, but such an interpretation is consistent with the constitutive elements of the crime’s explanation,which is brought a very big question?" Criminal law amendment (7)" revision is considered to be "half of a revolution". the kidnapping of the statutory penalty allocation still exist great controversy.In the fourth chapter, after putting forward his opinions and solve the above disputes,the author gives his own opinions:that is the reconstruction of statutory penalty allocation, and the refinement to the "minor plot", avoid excessive discretion in judicial practice, realize the balance between crime and punishment.