索债型绑架行为的立法缺陷与完善

Discuss the Legislative Defects and Perfection of the Kidnapping Behavior for Debt

索债型绑架,是指行为人以索取所谓的"债务"为理由,非法绑架债务人或其利益关系人并以被绑架人的人身安全作要挟,用以逼迫债务人亲属或其本人偿债的犯罪行为,我国现行《刑法》一般情况下把它按非法拘禁罪论处。然而,不可否认的是,它与绑架罪存在着千丝万缕的联系。目前,刑事实务界关于此讨论比较多的是怎样界定"债"的存在问题,但对立法的缘由及妥当性思考却鲜有论及。基于当前我国法律的相关规定,对索债型绑架一律排除适用绑架罪的合理性提出质疑,并提出修改意见,希望能够对我国立法的完善有所裨益。

The kidnapping behavior for debt refers to the behavior of obtaining the so-called 'debt' as the reason, the actor illegally kidnaps the debtor or his stakeholder and puts their safety as a threat for the purpose of forcing the stakeholder or the debtor himself to repay the so-called 'debt'. Generally, the above behavior is usually penalized as the crime of illegal detention according to our current Criminal Law. However, there is no denying that it is inextricably linked with the crime of kidnapping. At present, there is a lot of discussion about how to define the existence of the 'debt' in criminal practice, but the reason for the legislation and the thinking of its rationality are rarely discussed. Based on the relevant provisions of the current laws of our nation, the authors challenge the rationality of the practice that the kidnapping behavior for debt can be uniformly excluded as the crime of kidnapping, and propose amendments with the hope that it can be beneficial to the perfection of our national legislation.