绑架罪情节加重犯研究

发布时间：2018-04-30 20:47

本文选题：绑架罪 + 杀害被绑架人　；参考：《上海交通大学学报(哲学社会科学版)》2017年02期

【摘要】：在《刑法修正案(九)》将杀害被绑架人和故意伤害致被绑架人重伤、死亡并列规定为绑架罪法定刑升格条件,并将法定刑修改为无期徒刑或死刑的情况下,应当将"杀害被绑架人"理解为故意杀人并且造成被绑架人重伤或死亡的情形,包括杀人既遂、未遂和中止在内。"杀害被绑架人"是情节加重犯,是将故意杀人致人重伤、死亡之结果作为绑架罪法定刑升格的加重情节,不是结果加重犯、结合犯、包容加重犯等犯罪形态。对于故意伤害致人轻伤、过失致人重伤或死亡、故意杀人致人轻伤、故意杀人预备等情形,既不宜作为独立的犯罪与绑架罪数罪并罚,也不宜作为绑架罪加重构成的未完成形态,而应根据包括一罪理论,作为绑架罪基本犯的酌定从重处罚情节。
[Abstract]:In the case of killing a kidnapped person and intentionally wounding the kidnapped person and causing serious injury to the kidnapped person, and the death being defined as a condition for the upgrading of the statutory punishment for the crime of kidnapping, and if the statutory penalty is amended to life imprisonment or the death penalty, in the case of the Criminal Law Amendment (9) >, "the killing of a kidnapped person" should be understood as a case of wilful killing and causing serious injury or death to the abducted person, including the completion, attempt and suspension of the killing... " The killing of kidnapped person "is a aggravated crime of aggravated circumstances, and the result of intentional killing causes serious injury, and the result of death is regarded as the aggravating circumstance of the legal punishment of kidnapping crime, not the aggravated crime of result, the combined crime, the tolerant aggravated crime and other forms of crime." For cases such as intentional injury causing minor injury, negligence causing serious injury or death, intentional killing causing minor injury, and intentional preparation for murder, it is not appropriate to be punished as an independent crime combined with the crime of kidnapping. It should not be regarded as the incomplete form of the aggravated kidnapping crime, but should be regarded as the discretionary punishment circumstance of the basic crime of kidnapping according to the theory of including one crime.
【作者单位】：上海交通大学凯原法学院;
【分类号】：D924.3

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