Viewpoint | Analysis of the application of "minor circumstances" in the crime of kidnapping in judicial practice

The crime of kidnapping is a common violent crime in judicial practice. Its basic starting point is fixed-term imprisonment of more than 10 years. Article 6 of the (VII) to the Amendment to the Criminal Law passed in 2009 revised the minimum legal penalty for the crime of kidnapping. The crime of kidnapping with "relatively minor circumstances" can be sentenced within fixed-term imprisonment of not less than 5 years but not more than 10 years and fined. This amendment increases the level of the crime of kidnapping, broadens the sentencing space of the crime of kidnapping, and highlights the inherent requirements of the criminal policy of combining justice with leniency. However, after the "Criminal Law Amendment (VII)" adjusted the sentencing of the crime of kidnapping, it did not further explain the "minor circumstances". So far, the "two highs" have not issued relevant regulations to explain. This paper intends to find out the specific meaning of "lighter circumstances" in judicial practice through the analysis of the judged cases.

After the promulgation of the (VII) to the Amendment to the Criminal Law, the crime of kidnapping has been widely applied in judicial practice. The author selects 22 cases listed in the chart from more than 3,000 cases retrieved for analysis. Although the criminal acts and harmful consequences are different in each case, the reference factors and applicable fields chosen by the judge when applying "minor circumstances" are basically the same. In a nutshell, the subjective and objective factual factors that can reflect and reflect the degree of social harm of the crime of kidnapping belong to the judgment basis of "minor circumstances. The subjective and objective factors that reflect the degree of social harm can be analyzed mainly from the four aspects of the perpetrator's criminal means, the degree of behavior, the purpose and motivation of the crime, and the harmful consequences.

First of all, from the means of kidnapping analysis. The means of kidnapping refers to the methods and means of hijacking the victim. The common means of kidnapping are: threat and intimidation, violent hijacking, beating and binding, using lethal weapons, controlling the victim for a long time, abusing the victim and so on. The different means of kidnapping used by the perpetrator directly affects the degree of social harm of the crime. Generally speaking, the worse the perpetrator's means of kidnapping, the greater the degree of harm to society, and the less likely it is to be identified as "less serious. In the above 22 cases, the reason for determining "minor circumstances" in 8 cases is that the perpetrator has the means of kidnapping such as not beating, binding, abusing the victim or kidnapping for a short time.

Secondly, from the degree of behavior analysis. It is generally believed that the crime of kidnapping is a criminal act, as long as the perpetrator controls the victim's crime, that is, the crime of kidnapping is completed, as to whether the perpetrator made a request for extortion of property or other requirements, or whether the purpose of the crime was achieved. Although the degree of behavior is an objective manifestation, it is a concentrated expression of the perpetrator's subjective malignancy. The behavior of the perpetrator kidnapping others many times, not releasing the kidnapped person after receiving the ransom, or even killing the kidnapped person all reflects that the subjective viciousness of the person is greater. However, in practice, after the kidnapping has been accomplished, some perpetrators voluntarily release the kidnapped person after learning that the victim's family members have reported to the police or repented. For this situation, the effect is equivalent to the suspension of the crime, which can reflect the subjective malignancy of the person and the small personal danger, which can be regarded as "minor circumstances". In the above 22 cases, there are also 5 cases because the perpetrator took the initiative to release the kidnapped person and was identified as "minor circumstances". It should be noted that the active release must be that the perpetrator voluntarily allows the kidnapped person to return to freedom. If the perpetrator abandons the kidnapped person for self-protection under the pursuit of others, it cannot be regarded as "minor circumstances". For example, in the kidnapping cases of Dong Guangshu and Liu Shengwei, the two defendants were forced to give up the victim in the process of escape because they were chased by others, the judgment of the first instance held that this situation could not be regarded as the active release of the victim, let alone "minor circumstances".

Again, from the perpetrator's criminal intent, purpose, motivation and other aspects of the analysis. The intent, purpose and motive of the crime are all subjective elements, reflecting the subjective malignancy of the perpetrator, and thus have a significant impact on the social harmfulness of the crime of kidnapping. The perpetrator kidnaps others out of personal desires, or under the pressure of life, or because the legitimate rights and interests cannot be guaranteed, or because of a specific relationship, which reflects the subjective malignancy of the perpetrator. For example, in the case of Lu's kidnapping and Nie Wei's kidnapping in the above table, the co-defendant in the previous case had a certain creditor's rights and debts with the victim. In the later case, Nie Wei and the victim were husband and wife. Nie Wei kidnapped his wife to extort property from his mother-in-law due to conflicts between husband and wife. The motive of these crimes is general, and the severity of subjective intention is not great. In addition, whether the perpetrator has been planning to kidnap others for a long time or on an ad hoc basis is also related to the magnitude of the perpetrator's subjective malignancy. Although the motive and purpose of the crime are not the content of the elements of the crime, they have a certain influence on the determination of the seriousness of the circumstances. Therefore, temporary kidnapping, forced life pressure or debt relationship to claim a small amount of property can be considered to apply "less serious circumstances".

Finally, from the analysis of the consequences of harm. The crime of kidnapping, as a crime in the crime of infringing upon the personal rights and democratic rights of citizens in Chapter IV of the Criminal Law, gives priority to the protection of the personal rights of the victims, followed by the property rights of the third party. In practice, the violation of the personal rights of the kidnapped person mainly includes the death, serious injury, slight injury, slight injury or no obvious injury of the kidnapped person. In practice, if the person does not cause the harmful consequences of minor injuries to the kidnapped person, it can be used as a consideration for the application of "minor circumstances. In addition, the infringement of the property rights of the third party mainly depends on the size of the property loss of the third party caused by the kidnapping, including the particularly large amount of extortion, the huge amount, the large amount and the unclaimed property. There is no explicit provision in the law on property losses caused by kidnapping. In practice, reference is mostly made to the relevant provisions on extortion and robbery, that is, 2000 yuan to 5000 yuan is a large amount, 30000 yuan to 100000 yuan is a huge amount, and 300000 yuan to 500000 yuan is a particularly huge amount. When searching the case, the author noticed that the amount of extortion of property in judicial practice did not reach the standard of huge amount, which can be used as a consideration for the application of "lighter circumstances.

In practice, "actively releasing the kidnapped person during the kidnapping process, and did not cause the kidnapped person's minor injury or personal injury, and the ransom amount did not reach a huge amount" is a typical manifestation of "minor circumstances. However, the criminal acts of the perpetrator are often various. In a kidnapping case, the perpetrator may have both the circumstances that can be applied to the "minor circumstances" and the circumstances that exclude the application of the "minor circumstances. In such a situation, generally speaking, although the perpetrator has one or more circumstances that can be applied to "minor circumstances", if there are other serious circumstances that exclude the application of "minor circumstances", the result is generally not applicable. For example, the court held that in the case of Wang Xiaodong and Yi Mingming's kidnapping and robbery, although the victim's person was not harmed in this case, however, during the kidnapping process, the two defendants did not take the initiative to release the kidnapped person, and the ransom amount was as high as 500,000 yuan. During the kidnapping process, in order to better allow the victim to cooperate with the realization of his criminal purpose, he took off the victim's pants. He thought that his nude photos were a threat to his personal safety. The circumstances were bad and did not conform to the minor circumstances. On the contrary, although the perpetrator has one or more exclusions from the application of "minor circumstances", there are multiple applicable "minor circumstances" at the same time, and the court will generally apply "minor circumstances" after comprehensive consideration ". For example, in the second instance case of kidnapping crimes such as Xi Dashan, the court of second instance held that because the degree of violence of kidnapping in this case was not serious, the kidnapped victims did not suffer obvious harm. The appellants Xi Dashan, Xi Jian, Peng Chunlin and the original defendant Ni Wei only restricted their personal freedom after kidnapping the children, did not bind, beat, insult or abuse them, and did not get the kidnapping ransom. Based on the above-mentioned circumstances, it can be determined that the kidnapping crimes committed by the appellants Xi Dashan, Xi Jian, Peng Chunlin and the defendant Ni Wei in the original trial are relatively minor, and the sentencing provisions of "minor circumstances" apply. It is inappropriate to deny the fact that "the circumstances are minor" on the grounds that they did not take the initiative to release the hostages.

Special attention should be paid to the fact that the statutory sentencing circumstances such as suspension, attempt and preparation of the kidnapping crime do not belong to the "plot" in the "minor circumstances". On the one hand, this is mainly because the legislative model of China's criminal law is based on the completed form of the crime, and any evaluation of the seriousness of the crime is based on the investigation of the completed form of the crime. On the other hand, taking the unfinished form of the crime as the judgment basis of "minor circumstances", if the punishment is lightened or mitigated due to the unfinished crime in sentencing, it will inevitably lead to repeated evaluation of the unfinished form of the crime, which violates the principle of prohibiting repeated evaluation. However, if the unfinished circumstances of the crime are no longer considered in sentencing, it will inevitably lead to the actor releasing the kidnapped person voluntarily during the kidnapping process, and it has not caused the kidnapped person's minor injury or more than personal injury, the ransom amount has not reached a huge amount "and the crime suspension and other favorable circumstances can not be sentenced under five years' imprisonment, which will also violate the principle of equal punishment for crime. In practice, the usual practice is to first consider whether the discretionary circumstances can be identified as "minor circumstances", and then to the kidnapping of the statutory penalty or reduced statutory penalty as the basis, combined with the law on the crime of unfinished provisions, to be punished. For example, in the case of Qi committing the crime of kidnapping tried by the people's Court of Rencheng District of Jining City, the court held that: considering the facts of the case, the circumstances of the crime committed by the defendant against the victim can be determined to be relatively minor. In the course of the crime, the defendant Qi voluntarily gave up the crime, which was the suspension of the crime, and Qi was sentenced to two years in prison. For another example, in the case of the kidnapping crime of Fu Moujia tried by the People's Court of Huangpi District, Wuhan City, the court held that: the defendant Fu Moujia kidnapped his relatives due to family conflicts, and the circumstances were relatively minor; the defendant Fu Moujia took the initiative in the course of the crime. The hostage was returned to his relatives and the crime was automatically abandoned, which was a suspension of the crime, so the court reduced his punishment according to law. On this basis, the defendant, Fu Moujia, was sentenced to six months' imprisonment, suspended for one year.

In addition, the first offender, accidental offender, and the perpetrator's confession, repentance attitude, victim's understanding, and even surrender, meritorious service and other circumstances do not belong to the "plot" of the "minor circumstances" of the crime of kidnapping ". The circumstances that can be identified as "minor circumstances" must be the factual factors that reflect the social harm of the perpetrator when the perpetrator commits the crime of kidnapping, and cannot be the factual factors such as remedy and repentance afterwards. Although the circumstances such as first offender, occasional offender, confession, victim's understanding, voluntary surrender and meritorious service can affect the sentencing of the perpetrator, these circumstances can not reflect the degree of social harm when the perpetrator commits a crime, and have no effect on the seriousness of the crime of kidnapping, so they can not become the evaluation basis of "minor circumstances.

To sum up, the application of "minor circumstances" to the crime of kidnapping in judicial practice will consider various factual factors that can reflect the social harm when the perpetrator carries out the kidnapping act. The above-mentioned "minor circumstances" plot is not only one of them. In practice, the court will apply the provisions of "minor circumstances" on the basis of comprehensive grasp and comprehensive analysis and judgment, According to the above value judgment standard.