Holding a knife may constitute the crime of kidnapping, kidnapping others for the purpose of extorting property, or kidnapping others as hostages, and shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated; 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.
According to Article 239 of the Criminal Law, whoever kidnaps another person for the purpose of extorting property, or kidnaps 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; 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. 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. Whoever steals a baby for the purpose of extorting property shall be punished in accordance with the provisions of the preceding two paragraphs.
Second, the crime of kidnapping with a knife
The crime of kidnapping with a knife may become the crime of kidnapping.
Transformation of kidnapping crime
The typical feature of the crime of kidnapping is that the perpetrator takes hostage as a means, threatens to kill hostages, and orders to deliver a certain amount of money or meet certain requirements within a certain period of time in exchange for hostages. Therefore, the object of its infringement includes not only the personal freedom and life and health rights of hostages, but also the ownership of public and private property. In judicial practice, some atypical kidnapping crimes can also be transformed into kidnapping crimes when they have the basic elements of kidnapping crimes. In practice, it mainly refers to the transformation of the crime of illegal detention of demanding debts. Article 238 of China's Criminal Law stipulates: "Whoever illegally detains or detains others for the purpose of obtaining debts shall be punished as the crime of illegal detention", which often leads to the mistake in judicial practice that the crime of illegal detention is regarded as the crime of illegal detention for the purpose of obtaining debts. It is precisely because the crime of kidnapping and the crime of illegal detention are objectively manifested as illegal restrictions on personal freedom, so the crime of illegal detention can also be completed through "kidnapping", which is easy to be confused in practice.
1, the theoretical definition of the crime of kidnapping and illegal detention
Both the crime of kidnapping and the crime of illegal detention objectively show that the perpetrator illegally deprives and restricts personal freedom by means of violence and coercion, but the objective similarity cannot confuse the qualitative difference between them. First of all, subjectively, the purpose and content of the actor's subjective intention are different. The subjective motive of the crime of kidnapping is to extort money or other illegal interests. Kidnapping and hostage-taking are only means to achieve subjective goals, while the subjective intention of the crime of illegal detention is to illegally restrict the personal freedom of others. Secondly, objectively, it shows that the degree of restriction on the victim's personal freedom is different, and the ways and means of use are also different. In kidnapping cases, the perpetrator usually uses extreme violence, which makes the victim unable to resist, unable to resist and afraid to resist. Generally, when the victim is taken away from his residence and placed in a remote wilderness, it will cause great psychological panic to the victim. The crime of illegal detention is generally manifested in the low-intensity restriction of personal freedom by the actor. Thirdly, in the causality of the case, the former shows that there is generally no relationship between the perpetrator and the victim, and the perpetrator's purpose is to extort money by kidnapping or obtain other illegal interests by taking hostages, while the latter shows more interests such as disputes between the perpetrator and the victim, and the victim is often at fault in the cause of the crime. In addition, there are also great differences between the two in the requirements of the responsible subject and sentencing.
2. Criminal judicial determination of the kidnapping crime of transforming atypical pneumonia.
The so-called transformed crime refers to the fact that when a minor crime is committed, it is linked with another serious crime because of related common behavior, and the criminal law stipulates that it should be punished as a serious crime. Such as gathering people to fight and causing serious injury or death, this is the case. Under certain conditions, the crime of illegal detention can be transformed into the crime of kidnapping. Chen Mou lent Wu Mou 5000 yuan for operation in three times, and agreed on the repayment date. After the expiration, Chen Mou repeatedly failed to ask Wu Mou for money, so he had the idea of detaining Wu Mou's son to collect debts. He hijacked Wu's son to a residence and extorted 40,000 yuan from Wu by phone, claiming that he would kill the ticket if he did not pay the calculated ransom. Wu reported that Chen was arrested. From the beginning of this case, Chen Mou's behavior started as a typical hostage-taking debt collection, but Chen Mou turned to Wu Mou to extort 40,000 yuan in addition to Wu Mou's debt collection. At this point, the intentional content of Chen's subjective crime has changed, and his behavior has all the elements of the crime of kidnapping for the purpose of extorting property. The court finally sentenced him to ten years' imprisonment for kidnapping.
There are problems that legislators urgently need to solve. First of all, the identification of the situation that the crime of illegal detention for debt is transformed into the crime of extortion. How much money is extorted for the purpose of debt collection can be transformed into the problem of kidnapping, which is based on the conversion of crime and punishment under the condition that the creditor-debtor relationship between the perpetrator and the victim is clear. The second is how to solve the transformation problem of the crime of illegal detention for debt when the creditor's rights and debts are unknown. In my opinion, to investigate the transformed crime, we should not only examine the subjective and direct intentional content of the perpetrator, but also examine whether the purpose and motive of the crime is to extort money, and also examine the concreteness of the scope and conditions of the transformed crime, that is, whether the perpetrator has all the elements of the kidnapping crime, rather than simply judging by the results, that is, we must comprehensively evaluate it with the subjective purpose, the intentional content of the crime and the objective behavior.
Third, the criminal responsibility of the crime of hijacking with a knife
According to the first paragraph of Article 239 of the Criminal Law, whoever commits this crime shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated; 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. 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. Whoever steals a baby for the purpose of extorting property shall be punished in accordance with the provisions of the preceding two paragraphs.
When applying the punishment prescribed in this article, the judicial organ shall pay attention to the following issues:
1. "Killing the kidnapped person" refers to the act of deliberately killing the kidnapped person after kidnapping for extortion of property or other purposes. Whether it is successful or not, whether it causes serious injury or death, it should be severely punished to effectively protect the lives of citizens.
"Intentionally hurting the kidnapped person, causing serious injury and death" refers to the consequences of serious injury and death of the kidnapped person due to the use of violence or ill-treatment during the kidnapping process.
2, because the law for intentional killing of the kidnapped person, or intentional injury to the kidnapped person, resulting in serious injury or death, the statutory punishment adopted in legislation is life imprisonment or death penalty, so the judicial organs should take a very cautious attitude when applying the death penalty and strictly grasp the applicable conditions.
Whoever commits intentional injury or intentional homicide after kidnapping another person shall be included in the crime of kidnapping and shall not be convicted separately. Whoever commits rape and other criminal acts shall be punished for several crimes.
The above is about whether holding a knife violates the criminal law. Holding a knife may constitute the crime of kidnapping, which has violated the criminal law and needs to bear criminal responsibility. I hope I can help you.