绑架罪加重构成条款的再研究

发布时间：2018-06-22 03:46

本文选题：绑架罪加重构成 + 包容犯　；参考：《武汉大学》2017年硕士论文

【摘要】：绑架罪加重构成条款的性质是包容犯。加重犯的加重情节具有非犯罪性和依附性,在结构上只存在一个能够被刑法独立评价的行为,而杀害被绑架人或者故意伤害被绑架人,作为绑架罪的加重构成,是绑架罪基本行为之外的,另一能够被刑法独立评价的行为,因而绑架罪加重构成条款既不是结果加重犯、情节加重犯,也不是行为加重犯,而是实质的数罪,应该从罪数论的视角寻找对该条款的定性。考虑到行为发生顺序上的先后以及后行为对前行为的利用关系,应该将绑架罪的加重构成条款定性为包容犯而不是结合犯。包容犯的本质是法律拟制,绑架罪加重构成未得逞的认定需要遵守法律拟制的适用规则,需要明确"杀害"一词的具体含义。"杀害被绑架人"是指"杀死被绑架人","杀害被绑架人"不存在未遂,意图杀害被绑架人未得逞的,应该以普通绑架罪和故意杀人罪(未遂)数罪并罚。"杀害被绑架人"只能发生于绑架之后的非法控制人质阶段。在绑架阶段杀死被绑架人的,不能认定为"杀害被绑架人",应当视具体情况以故意杀人罪、敲诈勒索罪数罪并罚。"故意伤害被绑架人,致人重伤、死亡"相对于刑法修正前的"致使被绑架人死亡"而言,二者并非绝对对立的关系,而是一种限定、继承和发展的关系。"故意伤害被绑架人,致人重伤、死亡"不存在未遂,故意伤害被绑架人,未致人重伤的,应该视具体情况以绑架罪、故意伤害罪数罪并罚。被绑架人是否受到伤害不影响绑架罪"情节较轻"的认定,绑架过程中故意伤害被绑架人,致使被绑架人轻伤,随后又主动释放被绑架人的,同样可以认定为绑架罪"情节较轻"并减轻处罚。
[Abstract]:The nature of the aggravated constitution clause of the crime of kidnapping is an inclusive crime. The aggravating circumstances of the aggravated crime are non-criminal and dependent, and there is only one act that can be independently evaluated by the criminal law in the structure, and the killing of the kidnapped person or intentionally injuring the kidnapped person constitutes the aggravated crime of kidnapping. In addition to the basic acts of the crime of kidnapping, another act which can be independently evaluated by the criminal law, therefore, the aggravated crime of kidnapping constitutes neither a consequential aggravated crime, nor an aggravating circumstance crime, but a substantial number of crimes. We should look for the characterization of this clause from the angle of crime number theory. Considering the sequence of occurrence of the act and the utilization of the former behavior, the aggravated constitution clause of the crime of kidnapping should be characterized as an inclusive crime rather than a joint crime. The essence of the inclusive crime is legal fiction, and the determination that the aggravated crime of kidnapping constitutes an unsuccessful crime needs to abide by the applicable rules of the legal fiction, and the specific meaning of the word "killing" should be clarified. " "killing a kidnapped person" means "killing a kidnapped person" and "killing a kidnapped person" does not exist. If the attempt to kill a kidnapped person fails to succeed, the crime of ordinary kidnapping and intentional homicide shall be punished together. " The killing of kidnapped persons "can only take place in the stage of illegal control of hostages after kidnapping." Whoever kills a kidnapped person during the kidnapping stage cannot be considered as "killing the kidnapped person", and shall be punished for the crime of intentional homicide and the crime of extortion according to the specific circumstances. " Intentional injury to kidnapped person, serious injury to person, death "compared with" causing death of kidnapped person "before the amendment of criminal law, they are not absolutely opposite relation, but a kind of limited, inheritance and development relationship." Intentional injury to the kidnapped person, causing serious injury, death "there is no attempt, intentionally hurt the kidnapped person, did not cause serious injury, should be according to the specific circumstances of the kidnapping crime, intentional injury combined punishment." Whether the kidnapped person is injured or not does not affect the determination of the "lesser circumstances" of the crime of kidnapping. Those who intentionally injure the kidnapped person during the kidnapping process and cause the kidnapped person to be slightly injured, and then release the kidnapped person on their own initiative, It can also be considered as the crime of kidnapping, "lighter circumstances" and mitigated punishment.
【学位授予单位】：武汉大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.34

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