绑架罪司法认定中的几个疑难问题探究——从陈某绑架、抢劫案开始谈起

On Several Difficult Problems of Judicial Determination of Kidnapping Crime——In view of the Case of Kidnapping and Robbing Committed

对于行为人在绑架过程中劫取被绑架人财物的行为,因是基于两个不同的犯意而实施的两个完全不同的犯罪构成事实,应以绑架罪和抢劫罪数罪并罚;现行刑法第239条中规定的“杀害被绑架人”此一绝对适用死刑的情节,应解释为一种加重结果,亦即所谓的“杀害”是指“杀死”;而该条对“致死被绑架人死亡”此一情节简单配置唯一刑种死刑的做法,显与罪责刑相适应原则相悖,因而有必要予以完善。

With regard to the action of robbing the victim＇s possessions in the course of kidnapping crime, Because criminal commits two kinds of completely different criminal requisites＇facts based on different criminal intents, who should adopt combined punishment for kidnapping crime and robbing crime. The circumstance of killing the kidnapped person in Article 239 of Criminal Law of the People＇ Republic of China, which should be construed to be aggravation consequence, that is to say, killing means that criminal murders Criminal Law provides the circumstance of causing death to the kidnapped the kidnapped person. person of such article However, as to the should be punished simply to death, which deviates from the principle of balance of crime and punishment, thus it should be revised.