1, object element
The object of this crime is the right to health, life and personal freedom of others. Violence, threats, anesthesia or other methods used in kidnapping endanger the health of the victim; After hijacking others by violence, coercion, anesthesia or other means, the victim is confined, under residential surveillance and deprived of his personal freedom; The perpetrator of the crime of kidnapping will kill the victim and cover his mouth if the criminal purpose (extortion of property) fails, thus infringing on the victim's right to life.
The target of this crime is any living white man, not only women, children and babies. In practice, most of the abductees are women, children, self-employed, private owners or important figures in large companies and enterprises.
2. Objective factors
This crime is objectively manifested as the act of hijacking others by violence, coercion, anesthesia or other means. The so-called violence refers to the direct attack and coercion on the victim's body, such as binding, pushing, dragging, beating, injuring, forcibly carrying away, etc. The so-called coercion refers to the act of never threatening violence by refusing to accept it, and exerting mental coercion on the victim to make him dare not resist. The content of coercion Some people think that there are other non-violent threats besides violence and threats, which is inappropriate. The threat of non-violent content does not endanger the personal safety of the victim, and its social harm is completely different from violence, threat of violence and anesthesia methods that endanger the personal safety of the victim. Just as the threat with non-violent content and the act of forcibly robbing the victim's property are defined as extortion, the coercion with non-violent content should be convicted of abducting and selling women and children. The object of coercion to commit violence can be the victim himself or the relatives of the victim present. Coercion can be carried out by words or actions, such as gesturing in front of the victim with a knife, but coercion must be carried out face to face with the victim. The so-called anesthesia refers to the use of drugs, drunkenness and other acts that lead to the victim's general paralysis, lethargy and coma.
Whether it is violence, coercion or anesthesia, its essential feature is that it goes against the will of the victim, making the victim unable to resist, afraid to resist, unable to resist or ignorant of resisting and robbing the victim. Therefore, the degree of violence, coercion and anesthesia should reach the point where the victim can't, dare, be powerless or don't know how to resist. If the perpetrator pushes, drags, or carries out a slight threat of violence or acts such as persuading alcohol and taking drugs in the process of kidnapping, but it is not enough to make the victim unable, afraid, unable or unaware to resist, and the victim's accompanying departure is mainly due to credulity and temptation, it cannot be convicted.
The so-called "hijacking" refers to robbing the victim from the original place and controlling the victim. As mentioned above, there are many ways to hold and control the victim, such as binding, confinement, surveillance, hostage taking, anesthesia and so on. Its essential feature is to deprive the victim of personal freedom, so in the process of controlling the victim, the actor can use violence or threat, or not.
3. Main elements
The subject of this crime is the general subject, and any natural person who has reached the age of criminal responsibility and has the ability of criminal responsibility can constitute this crime.
4. Subjective factors
Subjectively, this crime has direct intention, with the purpose of extorting others' property or hijacking others. The so-called purpose of extorting property refers to the perpetrator kidnapping the victim with the threat of hurting the victim and forcing the close relatives of the victim to hand over the property. The property here includes money, securities, gold and silver treasures and other items with economic value or property interests.
Second, identify
(1) The boundary between this crime and the crime of abducting and selling women and children.
Crime of trafficking in women and children and the crime of kidnapping both have the crime of kidnapping, and there are many similarities in form. The key to the difference between the two lies in the different purpose of the crime. Crime of trafficking in women and children aims at selling, and the crime of kidnapping aims at extorting property and taking others hostage.
(2) The boundary between this crime and extortion.
The crime of threatening kidnapping is often confused with the crime of extortion. The difference between them is:
1, the criminal object is different. The goal of extortion is the same as the goal of obtaining property. The object of kidnapping and the object of obtaining property are different people.
2. The objective factors are different. If the threat of extortion is violence, pedestrians claim that it will be carried out in the future, and the threat of kidnapping violent content has been carried out on the spot at that time.
3. The perpetrator of the crime of extortion does not take the victim away for hiding and control, but the crime of kidnapping takes the victim away for hiding and control. In addition, if the perpetrator deceives others by kidnapping that does not exist and fails to deliver the property on the spot, he should not be convicted of extortion or kidnapping, but should be punished as fraud. If you cheat or threaten others to hand over property on the spot, and the content of the threat is violence against people, you should be punished as robbery. If the content of the threat is to expose privacy, it should be punished as extortion.
(3) the boundary between this crime and the crime of illegal detention
In fact, there is a special and general relationship between the crime of kidnapping and the crime of illegal detention. Both of them are crimes against the personal freedom of others. Moreover, the crime of kidnapping must objectively be an act of illegally depriving others of their personal freedom. The method of deprivation is no different from the method of illegal detention in nature, and it can be violence, coercion or other methods. The crime of illegal detention can also be constituted by the crime of kidnapping; The spatial characteristics of kidnapping and hijacking victims in the two crimes are the same, which can be left in the same place or taken away from the original place.
The main difference between the crime of kidnapping and the crime of illegal detention is that the crime of kidnapping consists of not only the illegal deprivation of personal freedom, but also the purpose of extorting property or meeting the criminal's illegal demands, as well as the corresponding behavior of saving money or making illegal demands. The crime of illegal detention only requires the perpetrator to deprive others of their personal freedom. In practice, cases involving kidnapping and illegal detention are mainly cases of kidnapping and hostage-taking for the purpose of debt. Paragraph 3 of Article 238 of this Law clearly stipulates that anyone who illegally hijacks or detains another person in order to obtain debts shall be convicted and punished for the crime of illegal detention. We believe that when handling cases of kidnapping and hostage-taking, we should pay attention to the fact that the provisions on judicial interpretation before the promulgation of this Law are inconsistent with this Law and will no longer be applied by reference, and pay attention to distinguishing the crime of illegal detention from the crime of kidnapping in the following aspects:
1. The term "illegally detaining others or detaining others for the purpose of demanding debts" mentioned in the third paragraph of this article refers to legal debts. Anyone who illegally detains or detains others in order to obtain illegal debts such as gambling debts shall be convicted and punished for kidnapping. If the relationship between creditor's rights and debts is unclear and the perpetrator really kidnaps for the purpose of obtaining legal debts, it should be characterized as the crime of illegal detention. However, in the case of kidnapping or hostage-taking because of the creditor-debtor relationship between the perpetrator and others, the real intention of the perpetrator should also be carefully examined. If the perpetrator kidnaps or takes hostages for the purpose of not collecting debts, he should still be convicted and punished for kidnapping.
2. If, after kidnapping another person to ask for debts, he asks for debts from his close relatives or other people, and then asks for extra property or makes other illegal demands by holding the kidnapped person, the perpetrator commits both the crime of illegal detention and the crime of kidnapping. However, this situation should be regarded as a form of imaginative joinder (the act of asking for property, and there are both debts and surplus property in the property) or absorption crime, and the perpetrator should be treated as kidnapping crime.