① Relevant laws and regulations: This act involves the crime of kidnapping, which refers to the act of kidnapping others by violence, coercion or other means for the purpose of extorting property or other purposes. Or kidnap someone as a hostage.
Combined with the Criminal Law Amendment (IX), Article 239th of the Criminal Law stipulates:
(1) Whoever abducts another person for the purpose of extorting property, or abducts another person as a hostage, shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated of property; If the circumstances are relatively minor, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and shall also be fined.
(2) Whoever commits the crime mentioned in the preceding paragraph and kills the kidnapped person, or intentionally hurts the kidnapped person, causing serious injury or death, shall be sentenced to life imprisonment or death, and his property shall also be confiscated.
(3) Whoever steals a baby for the purpose of extorting property shall be punished in accordance with the provisions of the preceding two paragraphs.
(2) Forcibly taking children away from their parents involves the crime of kidnapping, but the children are abused, so the act of taking children away may also be interpreted as being brave. Whether it meets the conditions for the establishment of a courageous act needs to be strictly controlled by the law.
Even if the crime of kidnapping is established, because there is a plot of surrender and there is no malice in motivation, it is also applicable to a lighter punishment or exemption from punishment.
(3) The legal features of courageous mainly include:
1. The subject of doing good is a natural person who has no legal duties and obligations. A subject who has legal duties or obligations cannot be a courageous subject when performing legal duties or obligations.
2. The object of the protection of courageous acts is the interests of the state and the collective or the personal and property safety of others. The act of citizens fighting against illegal and criminal acts in order to protect the safety of life and property cannot be regarded as a courageous act.
3. The subjective aspect of being brave lies in being proactive, regardless of personal safety.
4. The objective aspect of being brave is to fight against harmful acts or natural disasters without hesitation when the interests of the state and the collective or the personal and property of others are infringed.
The formation conditions of courageous:
First, protect the interests of the state and the collective and the personal and property safety of others;
Second, it has a plot that ignores personal safety;
Third, the behavior of fighting against illegal and criminal acts or rescuing, providing disaster relief and saving people was carried out.
These three elements must be met at the same time in order to constitute a courageous act.
(4) Surrender: Surrender refers to the act of voluntarily surrendering after committing a crime and truthfully confessing one's crime to the public security, judicial organs or other relevant organs. China's criminal law stipulates that those who surrender themselves may be given a lighter or mitigated punishment. Among them, if the crime is minor, the punishment may be exempted. If a criminal suspect, defendant or criminal serving a sentence who has taken compulsory measures truthfully confesses other crimes that have not been mastered by the judicial organs, he shall be deemed to have surrendered himself. Now it also means taking the initiative to admit your mistakes truthfully.
⑤ Exemption from punishment: also known as "exemption from criminal punishment". The criminal was declared guilty, but he was exempted from punishment. Exemption from punishment is based on the premise that the act has constituted a crime and should be punished. It is completely different from "if the circumstances are obvious and slightly harmless, it is not considered a crime" and "acquittal" stipulated in Article 10 of the Criminal Law of our country. The former is guilty and unpunished; The latter does not constitute a crime and should not be punished. Exemption from punishment means exemption from punishment, not all punishment. This behavior can refer to this law and regulation.
⑥ Influence of public opinion: This behavior has moral advantages in public opinion, so it may be used as a basis for mitigating punishment.
Guigang lawyer/Guigang