绑架罪法益问题研究

发布时间：2019-07-05 21:31

【摘要】：绑架罪是一种传统、典型的严重暴力性犯罪,在当下经济高速发展的中国,绑架案件的发生依然能够引起社会各界的广泛关注。绑架罪从1997年刑法设立至今,已经历两次刑法修正案的修改。立法上的频繁改动也反映了绑架罪所带来的争议颇多,不论是理论界还是实务界,都对绑架罪的诸多争议问题保持高度的关注。笔者自读研以来,便对绑架罪的理论问题产生了浓厚兴趣。笔者认为,绑架罪的诸多理论争议中,最为核心的也是最具理论价值的便是绑架罪的法益问题。绑架罪之所以会产生各种各样的争议,首先便是因为法益这一本源问题存在争议。只有厘清和界定出绑架罪的法益内涵,我们才能进一步解决诸如绑架罪的单复行为争议以及目的犯的实质等问题。此外,也可以更好地指导司法实践中存在的相似罪名难以界定等问题。不论是揭示绑架罪法益问题的理论漏洞,还是发挥法益在绑架罪司法实践中的功能,都要首先确立本文的立论前提和基本立场。这一基本立场包含了两个方面:第一是对绑架罪进行文化背景和制度史的考察,从古代到当下中国,既有绑架罪立法的制度变迁史的考察,也有立法背后的人文社会环境因素的考察,如封建法制承继下的重刑主义。第二是阐述当下法益理论在中国产生与发展,这是基于一种学说史的考察,还包括了法益内涵与功能的介绍与阐述。这两个方面结合在一起能够全面深刻地反映出绑架罪法益问题的知识背景和理论前提。在确立了基本立场的前提下,对绑架罪法益问题进行理论上的解构。通过分析和对比当下绑架罪法益理论的诸多不同观点,逐步确立了单一法益说中的一种比较科学的理论。这种比较分析是通过对各个理论所存在的逻辑上的不能自洽来展现的。以此为基础,通过对绑架罪类法益的解读以及重刑主义引发逻辑错位的原因分析,基本找出了绑架罪法益困境产生的主要原因。在对绑架罪法益问题的理论分歧产生原因进行解构的同时,也逐渐梳理和呈现出绑架罪法益的理论建构路径。首先,通过理论阐述,确立了绑架罪法益的基本内涵,既包括基于行为手段视角上的阐述,也有基于法益保护择一关系的实质考察。理论建构的最终目的是为了更好地指导司法实践,因此,在厘清了法益内涵的基础上,通过对绑架罪第2款规定的法益解释和其他相似罪名的比较分析,基本实现了绑架罪法益的指导和解释犯罪构成要件的机能。
[Abstract]:Kidnapping is a kind of traditional and typical serious violent crime. In China, where the economy is developing rapidly, the occurrence of kidnapping cases can still attract extensive attention from all walks of life. Since the establishment of the criminal law in 1997, the crime of kidnapping has gone through two amendments to the criminal law. The frequent changes in legislation also reflect that there are a lot of disputes caused by the crime of kidnapping, both in the theoretical and practical circles, have maintained a high degree of attention to many controversial issues of the crime of kidnapping. Since studying in graduate school, the author has had a strong interest in the theoretical problem of kidnapping crime. The author believes that among the many theoretical disputes of kidnapping crime, the core and most valuable one is the legal interest of kidnapping crime. The crime of kidnapping produces all kinds of disputes, first of all, because the source of legal interest is controversial. Only by clarifying and defining the connotation of the legal interest of kidnapping crime can we further solve the problems such as the dispute of single reply behavior of kidnapping crime and the essence of purpose crime. In addition, it can also better guide the judicial practice of similar charges are difficult to define and so on. Whether it is to reveal the theoretical loophole of the legal interest of kidnapping crime, or to give full play to the function of legal interest in the judicial practice of kidnapping crime, we must first establish the premise and basic position of this paper. This basic position includes two aspects: the first is to investigate the cultural background and institutional history of kidnapping crime. From ancient times to the present China, there are not only the history of institutional change of kidnapping legislation, but also the investigation of humanistic and social environmental factors behind the legislation, such as the doctrine of severe punishment inherited by feudal legal system. The second is to explain the emergence and development of the current legal interest theory in China, which is based on the investigation of the history of a theory, and also includes the introduction and exposition of the connotation and function of the legal interest. The combination of these two aspects can comprehensively and profoundly reflect the knowledge background and theoretical premise of the legal interest of kidnapping crime. On the premise of establishing the basic position, the legal interest of kidnapping crime is deconstructed theoretically. By analyzing and comparing many different viewpoints of the current theory of legal interest of kidnapping crime, a more scientific theory in the theory of single legal interest is gradually established. This comparative analysis is shown by the logical inconsistency of each theory. On this basis, through the interpretation of the legal interests of kidnapping crime and the analysis of the causes of logical dislocation caused by felony, the main reasons for the predicament of legal interests in kidnapping crime are basically found out. While deconstructing the causes of the theoretical differences in the legal interest of kidnapping crime, it also gradually combs and presents the theoretical construction path of the legal interest of kidnapping crime. First of all, through the theoretical exposition, the basic connotation of the legal interest of kidnapping crime is established, which includes not only the exposition based on the perspective of behavioral means, but also the substantive investigation based on the alternative relationship of legal interest protection. The ultimate purpose of the theoretical construction is to better guide the judicial practice. Therefore, on the basis of clarifying the connotation of the legal interest, through the comparative analysis of the interpretation of the legal interest stipulated in paragraph 2 of the crime of kidnapping and other similar charges, the function of guiding and explaining the constituent elements of the crime of kidnapping is basically realized.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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