Lecture 16 | Kidnapping
Hello everyone, welcome to "Learn Some Practical Laws Every Day", a common legal provision and a real judicial case, let us in the rapid development era, adding an essential skill for personal growth.
?
1. Legal provisions
Article 239 of the "Criminal Law of the People's Republic of China": Anyone who kidnaps others for the purpose of extorting property or kidnaps others as hostages shall be sentenced to ten years Above, fixed-term imprisonment or life imprisonment, and a fine or confiscation of property; if the circumstances are relatively minor, the offender shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined.
Whoever commits the crime in the preceding paragraph and kills the kidnapped person, or intentionally injures the kidnapped person, causing serious injury or death, shall be sentenced to life imprisonment or death, and his property shall be confiscated.
Those who steal babies for the purpose of extorting property shall be punished in accordance with the provisions of the preceding two paragraphs.
II. Real Cases
(1) Basic Facts of the Case
At about 12, 10 and 19 o'clock, the defendants Qing Qing and Fu Yao were In a parking lot in Lucheng District, Wenzhou City, armed with plastic ropes and other objects, they saw Chen sitting alone in a mini car with the license plate Zhe C C××××, and plotted to kidnap him. Fu Yaomou covered Chen's mouth to prevent him from calling for help and got into the cab. Fu Qingmou entered the back seat through the passenger compartment, dragged Chen to the back seat, and pressed his head on his lap. He tied his hands behind his back with two prepared plastic ropes and blocked his mouth with a prepared towel, while Fu Yaomou drove the car to Quxi Town, Ouhai District, this city. On the way, the payer robbed Chen of an 18K gold ring and a white iPhone 4S mobile phone. They also found two bank cards and more than 100 yuan in cash from his bag, and forced Chen to reveal his bank card password. Withdraw RMB 600 from the card. Subsequently, the defendant Fu Qingmou contacted Chen's mother by phone, threatening Chen's life and asking her to prepare a ransom of 50,000 yuan. Later, according to the instructions of Fu Qing and others, Chen's family placed a ransom of 50,000 yuan in the grass northeast of the gas station in Xia'an Village. At about 23:00 that night, Fu Qing took the ransom and told Fu Yao over the phone that Fu Yao would release Chen and the vehicle. After identification, the stolen white iPHONE brand 4S mobile phone was worth RMB 3,556, and the 18K gold ring was worth RMB 520. At around 2 or 3 o'clock in the morning the next day, Fu Yao and Fu Qing were arrested by the public security organs and brought to justice. The stolen money and goods involved in the case have been returned to the victim.
The District Procuratorate accused the defendants Fu Qingmou and Fu Yaomou of kidnapping and filed a public prosecution in the District Court.
Both defendants had no objection to the above facts during the trial, and there were testimonies from witnesses Huang and Zheng, statements from the victims, gold ring test reports, price appraisal conclusions, DNA test conclusion notices, and vehicle inspections. Records, arrest process, list of seized items, list of seized evidence, list of returned items, transaction details, sufficient criminal verdicts, release certificates from previous convictions, bank withdrawal surveillance videos, identity certificates and other evidence.
(2) Court Judgment
The district court held in the first instance that the defendants Fu Qing and Fu Yao kidnapped others for the purpose of extorting property, and their actions constituted the crime of kidnapping. Should be punished. The prosecution's charges were established. Since the defendants Fu Qing and Fu Yao truthfully confessed their crimes after being brought to justice, they confessed and could be given a lighter punishment in accordance with the law. In accordance with the provisions of Article 239 of the Criminal Law, it is decided:
1. The defendant Fu Qing committed the crime of kidnapping and was sentenced to ten years and six months in prison, deprived of political rights for one year, and fined 10,000 yuan;
2. The defendant Fu Yao committed the crime of kidnapping and was sentenced to ten years in prison, deprived of political rights for one year, and fined RMB 10,000.
3. The two mobile phones and 1 folding knife that were transferred with the case were confiscated.
After the first-instance judgment, the defendant does not appeal and the procuratorate does not protest, and the first-instance judgment becomes effective.
?
(3) Assessment
Kidnapping refers to the process of illegally violently taking hostages against a victim, usually to achieve blackmail, extortion or other conditions or purposes.
The crime of kidnapping refers to the act of kidnapping another person by violence, coercion or other means, or kidnapping another person as a hostage for the purpose of extorting property or other purposes.
The objects violated by this crime are complex objects, including other people’s rights to personal freedom, health, life, and all rights to public and private property.
Objectively speaking, it is the act of kidnapping others by violence, coercion or other means. "Violence" means that the perpetrator directly binds, gags, blindfolds and sacks the victim, or injures and beats the victim. "Coercion" refers to the psychological coercion of the victim or the threat of violence against the victim and his family members. "Other methods" refers to methods other than violence, such as using drugs, drunkenness, etc. to make the victim comatose. The common feature of these three criminal methods is that the victim is in a situation where he is unable to resist or dare not resist, and the victim is illegally kidnapped from his residence or location and placed under the direct control of the perpetrator, causing him to lose his freedom of movement. The law only requires that the perpetrator has one of the means to kidnap others to constitute this crime.
The criminal subject is a general subject. Anyone who is over 14 years old and has the ability to be responsible can constitute.
The subjective aspect consists of direct intentionality with the purpose of extorting property or taking hostages. "Kidnapping another person for the purpose of extorting property" refers to using violence, coercion or anesthesia to forcibly kidnap another person, threatening to kill or kill the hostage or not returning the hostage, and ordering relatives and friends related to the hostage to hand over certain property within a certain period of time, "in order to Money redeems people.
Third, promotion
First, the crime is completed.
As long as the kidnapped person is If the hostage is placed under the control of the perpetrator or a third party, or if the kidnapped person's close relatives or others are required to pay property, the kidnapping is completed. There is no need to actually pay property, and the hostage kidnapping is completed as long as the hostage is actually controlled. .
Secondly, it is a crime.
The crime of kidnapping continues after the kidnapping is completed. It is a crime of inheritance and accomplice. For example, A carries out a kidnapping and puts the kidnapped person under his control. B finds it profitable, so he offers to join and help A call the victim's family to ask for property. A and B are convicted of kidnapping* * *Crime.
Third, identification of this crime.
1. Stealing a baby for the purpose of extortion constitutes this crime.
2. Anyone who kills a kidnapped person, or intentionally harms a kidnapped person, causing serious injury or death, shall be sentenced to life imprisonment or death, and his property shall be confiscated.
Amendment 9 of the Criminal Law abolishes kidnapping. The crime of causing death is an aggravated crime, and the circumstance of intentional injury is added, which leads to a series of changes in the application of the crime of kidnapping.
(1) If the kidnapping itself causes death, it is no longer an aggravated crime. It can be treated as a felony according to the imaginary combination of kidnapping and negligent death.
(2) If intentional homicide is not completed during the kidnapping, it is generally believed that this can be regarded as ordinary kidnapping and intentional homicide. Attempted crime shall be punished concurrently. However, if an attempt is made to cause grievous harm, the provisions of "killing the kidnapped person...causing grievous harm" shall apply directly.
(3) If intentional injury is caused during the kidnapping process, but only minor injury is caused, this can be punished together with the crime of ordinary kidnapping and intentional injury (minor injury). This aggravating circumstance provision applies directly if serious injury or death results.
3. Anyone who commits rape during the kidnapping process will be punished with kidnapping and rape. Those who commit robbery will be punished as a felony. However, if kidnapping is carried out after robbery, he shall be punished for several crimes.
4. The relationship between kidnapping and illegal detention
Kidnapping another person for the purpose of extorting debt does not constitute the crime of kidnapping, but the crime of illegal detention. For example, A wants to kidnap C and lie to B that C owes him a debt. C believes it and helps A tie up C. Both men were convicted of the same crime within the scope of illegal detention, but A was separately guilty of kidnapping.
5. The relationship between kidnapping and extortion
If there is no kidnapping, but falsely claiming that someone else has been kidnapped and asking for property from other people’s families, this constitutes the crime of extortion (and Imaginary concurrence of the crime of fraud). For example, A kills B for revenge, and then impulsively calls B's family, lying that B is in his hands, and asking B's family to redeem him with money. a does not constitute the crime of kidnapping, but does constitute the crime of intentional homicide and extortion (an imaginary coincidence with the crime of fraud).
If a kidnapping is carried out, but the kidnapped person dies due to other reasons, and the hostage is falsely claimed to be alive to ask for property from his family, this constitutes the crime of kidnapping and extortion (which coincides with the crime of fraud). combine).
Fourth, after-class reflection questions
The crime of kidnapping includes two types:
One is kidnapping for money, that is, the perpetrator takes advantage of being kidnapped The person's close relatives and others are worried about the safety of the kidnapped person and force him to pay the ransom within a certain period of time; the other is hostage kidnapping, that is, the kidnapping of the hostage demands some illegal benefits or makes illegal demands, but does not include the repayment of debts.
What is the difference between these two types of kidnapping?
Everyone is welcome to leave answers in the message area and discuss together. I'll reveal the answer tomorrow.
Okay, that’s it for today’s lesson. Hope it can inspire you.
To this day, 3 49 /365 is still far from reaching the other side of practical legal cognition.
verb (abbreviation of verb) Yesterday’s questions and answers
Q: Can mentally ill people and children with mobility issues be the targets of illegal detention?
Answer: Both have freedom of movement and can be the subject of illegal detention.
:t? s+?