“以刑制罪”视阈下绑架罪的定性与量刑——对大样本绑架释放人质案件的实证考察

An Empirical Study on “Release Of Hostages”and “Relatively minor”in the Crime of kidnapping under the Threshold of Affirming a Crime by Penalty

对大样本绑架案件的实证考察发现,审判实践通过＂以刑制罪＂来实现从轻量刑的现象较为突出。具体包括：过度强调释放人质对认定情节较轻的意义,扩张解释情节较轻的范围,过度限制绑架罪而适用其他轻罪。＂释放人质＂型绑架案件,多不加区分地被认定为情节较轻且量刑畸轻,过度扩张法定从宽情节、限制从重情节的适用,即便未认定为情节较轻也从轻量刑。＂未释放人质＂型绑架案件,过度考虑释放人质外的其他因素对认定情节较轻的意义。排斥绑架罪适用的方式包括：将绑架罪的目的限制解释为重大不法目的,将行为方式限制解释为对人质实施重大不法侵害或威胁,扩张＂索债＂型非法拘禁罪的范围,以事出有因为由限制绑架罪的适用。审判实践对＂以刑制罪＂认识不一,同案异判较为突出。应进一步降低绑架罪的法定刑,对释放人质减免处罚作专门规定,重新梳理释放人质与认定情节较轻的关系,限制解释绑架罪不宜突破绑架行为的类型特征。立法上对绑架罪规定合理的罪刑关系,是解决司法上以刑制罪乱象的根本。

According empirical study on a mass of kidnapping cases,we can find that a lenient sentence is realized by affirming a crime by penalty in trial practice. In detail it concludes overemphasizing the significance of the release of hostages to the determination of relatively minor,expanding the scope of relatively minor,excessively restricting the crime of kidnapping and turn to other peccadilloes. The kidnapping cases of＂release of hostages＂are usually regarded as relatively minor and less penalties,excessive expansion of statutory extenuating circumstances and limiting the application of aggravating circumstances. The penalty is lighter even if the conduct is not considered as relatively minor. In the ＂ non-release of hostages＂ kidnapping cases,the significance of other factors to sentence as relatively minor were overemphasize. The way to exclude the crime of kidnapping includes limiting the purpose of kidnapping as huge unlawful purpose,restricting conduct as a gross unlawful infringement or threat to hostages,expanding the scope of the crime of illegal detention of＂demand for payment＂,restricting the application of the crime of kidnapping because of other reasons. The different understandings of affirming a crime by penalty result in different judgments in the same case. We should reduce the statutory punishment of the crime of kidnapping,make special provision for the release of hostages,re-sort the relationship between the release of hostages and the relatively minor,and restrict kidnapping should not break through the characteristics of the crime. The reasonable relationship between crime and punishment on the legislation of kidnapping is the fundamental solution to the chaos of affirming a crime by penalty.