1. Crime of Forced Transaction I. Concept and its composition The crime of forced transaction refers to the use of violence and threats to force the purchase and sale of commodities, forcing others to provide services or forcing others to accept services, the circumstances are serious. (I) Object Elements This crime not only violates the lawful rights and interests of the other party to the transaction, but also violates the market order of commodity trading. Commodity trading is a legal relationship between equal civil subjects, should follow the principle of voluntary and fair market transactions. However, in the present life, both sides of the transaction to buy and sell, force others to provide services or force others to accept the services of the phenomenon occurs from time to time, this behavior is contrary to the principle of market transactions, disrupting the order of market transactions, infringing on the legitimate rights and interests of consumers or operators. If the perpetrator uses violence or threat to force the transaction, it has a serious social harm, and if the circumstances are serious, criminal responsibility shall be investigated according to law. (ii) Objective Elements The objective aspect of this crime is manifested in the act of forcing the purchase and sale of goods, forcing others to provide services or forcing others to accept services by means of violence or threat, under serious circumstances. The so-called violence refers to the actual coercion or blow to the person or property of the coerced person, such as beating, binding, holding, besieging, injuring or destroying their property; the so-called threat refers to the actual mental coercion of the victim to harm his or her person, destroy his or her property, reveal his or her privacy, destroy his or her reputation, or victimize his or her relatives and so on. The way can be words, or action, or even the use of a particular dangerous environment for coercion. Whether it is violence or threats, the intention is to make them afraid to resist and forced to agree to trade. When another person is unwilling to buy or sell goods or provide or receive services, if non-violent threats such as inducement or deception are used to demand a transaction, the crime cannot be punished. Violence and threats are directly related to the transaction and are intended to cause the transaction to be realized. If the violence or threat is not motivated by this purpose and is committed outside of the transaction activity, naturally, it cannot be punished as this crime. Against the will of another person, forcing another person to trade with himself or a third person is the essential characteristic of this crime. The so-called against the will of others, refers to other people do not want to buy goods from them and force them to buy, other people do not want to sell goods and force them to sell, other people do not want to provide services and force them to provide, other people do not want to accept services and force them to accept. The so-called services refer to all kinds of business services, such as lodging, transportation, catering, maintenance, cleaning, gas delivery, consignment of furniture, provision of bellhops, etc. It should be noted that, in the case of forcing another person to sell commodities or to provide a service, the other person should generally be engaged in the sale of commodities or in the provision of services for profit. If another person is not engaged in such profit-making work, but forces another person to sell to him or her a certain commodity owned by him or her, such as an heirloom, or forces a person who is not engaged in carrying gas to carry gas for him or her, or a person who is not engaged in providing food and lodging to provide food and lodging to him or her, he or she shall not be punished for this crime. In addition, the service is a lawful service for profit. If the service is not lawful, such as forcing oneself to provide illegal services such as prostitution, gambling, or humiliating services such as washing one's feet or pouring urine, this crime cannot be constituted, and if it constitutes a crime, it shall be punished as another crime, which is a crime of circumstance, and can only be constituted when the act of forcing another person to transact reaches the severity of the circumstance. The crime is a crime of circumstance, which can only be constituted when the act of forcing others to trade reaches the level of seriousness. The crime cannot be punished even if the act of forcing others to trade is not serious. The so-called aggravating circumstances mainly refer to repeated forced transactions; the implementation of forced transactions to obtain a larger amount of money illegally; causing a bad influence of gangs to carry out forced transactions; bad means; forcing foreigners to trade; forced transactions of inferior content; and so on. (iii) Subjective Elements The subject of this crime is the general subject. Any natural person who has reached the age of criminal responsibility and has the capacity for criminal responsibility can constitute this crime, and according to the provisions of Article 231 of this Section, a unit can also constitute this crime. If a unit commits this offense, a two-penalty system shall be implemented, i.e., the unit shall be sentenced to a fine, and its directly responsible supervisors and other directly responsible persons shall be held criminally liable in accordance with the provisions of this Article. (D) subjective elements of this crime in the subjective aspect of the performance of direct intent, indirect intent and negligence does not constitute this crime. II. Determination (A) The boundaries between the crime of forced trade and general illegal behavior Forced trade behavior is a kind of illegal behavior that disturbs the order of market management, and this kind of behavior is not uncommon in commodity trade or service trade, therefore, in order not to strike too large a blow, this Law stipulates that the behavior of forcing commodity trade must reach the degree of seriousness in order to be considered as a crime. The so-called aggravating circumstances shall include the following points: 1) facilitating unfair trade and making a larger amount of illegal profit; 2) repeatedly forcing a parent to trade; 3) having a bad social impact; 4) causing more serious consequences to the victim and his family; 5) forcing a trade to seriously disrupt the market; and 6) more than two persons **** together to implement forced trade. The perpetrator uses minor threats to buy or sell by force, to force others to accept or provide services, the behavior is very restrained, the profit is very limited, the circumstances are significantly less serious and less harmful, is a general violation of the law, can not be considered a crime. (ii) Determination of the condition of "transaction" for the crime of forced trade This crime must occur in the transaction of goods or services, and there is a fact of transaction between the perpetrator and the victim, even though this unequal transaction is one in which one party is forcing the other party to accept the transaction. If no such transaction exists and the perpetrator uses violence, coercion or other methods on the spot for the purpose of unlawful possession to forcefully and immediately seize property, it shall be recognized as an act of robbery and shall not constitute the crime of forced transaction. (iii) Boundary between one crime and several crimes The crime of forced trade may cause death or injury due to the violence of the perpetrator in the course of its implementation. If the casualty, although in the forced trade crime and injury (including intentional and negligent), homicide (intentional and negligent) between the crime of guilt, but should not be implicated in the principle of punishment, but should be convicted and sentenced separately, to the principle of punishment of several crimes. The reason mainly lies in that, the legal high penalty for the crime of forced trade is three years of imprisonment, the legal term of imprisonment is low, visible which does not include the implication of other crimes and the sentence to a crime, that is to say, if you meet with the implication of other crimes and the punishment of forced trade, the three-year maximum sentence can not be absorbed by the sentence of the other crimes, and therefore, such as a crime will be punished by a punishment will not be eliminated, according to the principle of proportionality of crime and punishment, should be made in such a case. The punishment for such cases should be combined with several offenses. Penalties l. If a natural person commits this crime, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall be fined in addition to or in addition to a fine. (2) If a unit commits this crime, the unit shall be sentenced to a fine, and its directly responsible supervisors and other directly responsible persons shall be held criminally liable in accordance with the above provisions. 2. The crime of extortion refers to the act of forcibly demanding public or private property by threatening or blackmailing the victim for the purpose of illegal possession. The characteristics of this crime are: I. The object of this crime is the ownership of public and private property and the personal safety of citizens. The object of the crime is public and private property. www.tjbhfl.cn Second, this crime is manifested in the objective aspects of the crime as follows: 1, the perpetrator has the behavior of extortion; 2, the perpetrator forcibly demanded public and private property from the victim; 3, the perpetrator took the threat of violence, the threat of the victim's situation, the threat of exposing the victim's weaknesses, the threat of criminal behavior, the threat of destroying the victim's belongings, the threat of personality, and other methods of forcing the victim to submit to the act. The subject of this crime is a general subject, i.e., a Chinese citizen, foreign citizen or stateless citizen who has reached the age of sixteen and above and has the capacity for criminal responsibility. Fourth, the crime in the subjective manifestation of the crime is intentional, that is, the perpetrator of extortion of the victim is in the knowledge of the circumstances of the intentional exercise of the act. Extortion and blackmail, the Criminal Law provides: i. A term of imprisonment of not more than three years, detention or control; ii. If the amount is huge or the circumstances are serious, a term of imprisonment of not less than three years and not more than ten years. 3. Kidnapping Article 239 If a person kidnaps another person for the purpose of extorting property, or if he kidnaps another person as a hostage, he shall be sentenced to not less than 10 years' fixed-term imprisonment or life imprisonment and shall be fined or have his property confiscated; if he causes the death of the person who has been kidnapped, or if he kills the person who has been kidnapped, he shall be sentenced to the death penalty and shall have his property confiscated. Anyone who steals an infant or young child for the purpose of extorting property shall be punished in accordance with the provisions of the preceding paragraph. (A) the concept of kidnapping and the elements of the crime of kidnapping, refers to the extortion of property or hostage-taking for the purpose of the use of violence, coercion or other methods, the kidnapping of another person's behavior. The 1979 Criminal Law did not provide for this offense. The Decision of the Standing Committee of the National People's Congress on Severe Punishment of Criminals Who Abduct, Traffick or Kidnap Women or Children (hereinafter referred to as "the Decision") stipulates the crime of "kidnapping for ransom" in Article 2(3), which was amended and supplemented when the Criminal Law was revised in 1997, and the crime was changed to the crime of "kidnapping" accordingly. ". The constituent elements of the crime of kidnapping are: 1. The object of the crime is the personal rights of another person. Because the perpetrator of violence, coercion and other means of kidnapping others, directly endangering the life and health of the victim. In judicial practice, the perpetrator often threatened to endanger the victim, forcing his family to deliver ransom; in the process of kidnapping, the victim is often abused, heavy duty or even killed; there will be the victim endangered and then extorting money. The legislator will kidnap other people's behavior in the violation of citizens' personal rights, democratic rights in this chapter, indicating that the emphasis is also on the protection of citizens' personal rights. This kind of crime is actually the "kidnapping" behavior that was rampant in the old society, which has been extinct after the founding of New China, but has reappeared in recent years, and has a tendency to develop, and is extremely harmful to society. In order to vigorously punish this crime, the Criminal Law makes kidnapping a separate crime. The object of the crime is "another person". The "other person" includes both women and children and persons other than women and children. 2. The objective aspect is the use of violence, coercion or other methods to kidnap another person. "Violence" means that the perpetrator directly binds, gags, blindfolds or puts the victim in a sack, or physically assaults the victim by means of injuries or beatings. "Coercion" means the imposition of psychological coercion on the victim or the threat of violence against the victim and his or her family. "Other methods" means methods other than violent coercion, such as the use of drugs, intoxication and other methods to put the victim in a state of unconsciousness. The *** same characteristics of these three criminal means is to put the victim in a situation where he or she cannot resist or dare not resist, and to illegally kidnap the victim away from his or her residence or location and place him or her under the direct control of the perpetrator, so that he or she loses his or her freedom of action. The law only requires the perpetrator to have one of the means of kidnapping others constitutes this crime. 3. The subject of the crime is the general subject. On the question of whether a person who has reached the age of 14 or less than 16 should be held criminally liable for this crime, some scholars believe that, because of the "harmfulness of this crime is particularly great, all those who have reached the age of 14 and have the capacity to take responsibility can constitute ①. In our opinion, the eight crimes stipulated in the second paragraph of Article 17 of the Criminal Law refer to specific criminal acts rather than specific offenses. In accordance with the principle of the law of crimes and punishment and the provisions of the second paragraph of Article 17 of the Criminal Law, if a person who has reached the age of 14 but is less than 16 years of age only participates in the act of kidnapping but does not take part in the killing or injuring of the kidnapped person, and does not commit the act of intentional homicide or intentional injury resulting in serious bodily injury or death as stipulated in the second paragraph of Article 17 of the Criminal Law, the minor shall not be criminally liable for the act of kidnapping. However, his parents or guardians shall be instructed to discipline him; if necessary, he may also be placed in a correctional facility by the Government. If in the process of kidnapping to carry out the killing or injury (causing serious injury or death) of the kidnapped person, should be in accordance with the intentional homicide, intentional injury to pursue their criminal responsibility. 4. The subjective aspect is constituted by direct intent and has the purpose of extorting property or taking hostages. "Kidnapping for the purpose of extorting property" means the use of violence, coercion or anesthesia, forcibly seized another person, in order to kill, injure or not return the hostage hostage blackmail, order the hostage with the relatives and friends, within a certain period of time to hand over a certain amount of property, "money for ransom. The term "property" here should be understood in a broad sense, not limited to money, but also including other property interests. "Kidnapping another person as hostage" means taking another person as hostage for political purposes, to escape from pursuit or for other purposes such as requesting the judicial authorities to release the criminal. (B) that the kidnapping crime should pay attention to the problem 1, the kidnapping crime and trafficking in women and children in the kidnapping of women and children in the boundaries of the crime. These two crimes use violence, coercion or other methods, but there are obvious differences: First, the purpose of the crime is different. The former to extort the property of the abducted person, hostage-taking for the purpose, the latter to sell the abducted women and children for the purpose. Second, the object of the crime is different. The former kidnapping object refers to all people, including women and children, the latter refers only to women and children. 2. Delineate the boundaries between the crime of kidnapping and the crime of unlawful detention. In recent years, the society appeared due to debt relationship caused by "hostage type" violation of the personal rights of citizens, that is, to forcibly seize the "hostage" way, coercing others to perform certain acts for the purpose of illegal and criminal behavior. "Certain behavior for the purpose of", in practice, most of the Jian debt, demanding "money for people". This kind of behavior from the form of the first paragraph of article 239 of the criminal law with the purpose of extortion of property kidnapping behavior is very similar, but the essence of a big difference: first, the purpose of the crime is different. First, the purpose of the crime is different. While the former is to extort property, the latter is to extort a debt, and the "hostage" is taken as a means of recovering the debt. Second, the object of the crime is different. The former to kidnap people themselves completely no fault, and the latter to kidnap the "hostage" most of their own fault (such as debt), and even fraud and other criminal behavior, but also purely innocent. Therefore, Article 238 (3) of the Criminal Law clearly stipulates that "for the purpose of soliciting debts unlawful seizure, detention of others", in accordance with the provisions of the crime of unlawful detention of punishment. (3) Correctly determining the nature of the crime of stealing infants and young children. Cases of stealing infants should be criminalized separately according to the different purposes of stealing infants. In accordance with Article 239(2) of the Criminal Law, if the purpose of stealing an infant or young child is to extort property, he or she shall be convicted of the crime of kidnapping and shall be punished in accordance with the provisions of Article 239(1) of the Criminal Law. According to the provisions of Article 240(1)(f) of the Criminal Law, if a person steals an infant or young child for the purpose of selling him or her, he or she shall be convicted of the crime of abducting or selling a child and shall be punished in accordance with the provisions of Article 240(1) of the Criminal Law. 4. Delineating the boundaries between one crime and several crimes. In judicial practice, for the purpose of extorting money to kidnap others, the victim will be killed after extorting money behavior, is a crime or two crimes, understanding and practice are not consistent. For example, in order to extort money, the defendant Su XX on November 29, 1993, his cousin Su X (11 years old) will be lured to the remote no one place to kill, and then to Su X's parents to send anonymous threatening letters, extortion of money 20,000 yuan. The Intermediate People's Court of a certain city sentenced Su XX to death and deprivation of political rights for life for the crime of kidnapping for ransom. The defendant appealed, and the XX Municipal Higher People's Court, after hearing the case, was divided on whether to convict him of one or both offenses. One opinion favored a conviction for kidnapping for ransom. The reason is: the appellant in the kidnapping of others after the act of murder, belongs to the "tearing" behavior, can be kidnapping for ransom as the crime of "particularly severe circumstances" to be punished severely. Another opinion advocates that the crimes of kidnapping for ransom and intentional homicide should be punished concurrently. The reason is: "tear the ticket" refers to the behavior of the perpetrator of extortion of property unsuccessful after the murder of "hostage". In the present case, the appellant killed the "hostage" before extorting the property, and the murder was to silence him. The appellant to implement the act of murder and kidnapping for ransom, as in the process of robbery for the perpetrator to silence the victim will be killed, is out of two intentionally, violated two crimes, it should be determined two crimes. And the supreme people's court, the supreme people's procuratorate in the "on the implementation of a number of questions," only the objective aspects of the crime of kidnapping for ransom is the use of violence, coercion, or narcotic methods, hijacking the behavior of others, but does not include the killing of the kidnapped person. We agree with the former view. First, although the purpose of the perpetrator's kidnapping is to extort property, this crime violates not only the victim's property rights, but also, and above all, the victim's personal rights, including the right to health and life, which is why Taiwan's criminal law refers to this type of crime as the crime of "kidnapping for ransom". Secondly, the use of violence and coercion to kidnap another person is an important objective feature of this crime. The consequences of the use of violence and coercion include the possibility of causing the death of the hostage in the course of kidnapping the hostage, or killing the hostage out of motives such as silencing the hostage. Therefore, the physical danger of this crime is very high. Thirdly, this crime in the subjective aspect of the intention. But this kind of intention belongs to the generalized intention, including the intention of extortion of property, including the intention of endangering the "hostage", not only the intention of extortion of property. Generalized knowledge of the object of the crime is uncertain, it only requires the perpetrator of the facts of the crime have a general understanding of the crime can constitute intentional crimes, and does not require the perpetrator of a clear criminal results occur in what object. Fourthly, in view of the great social danger of the crime of kidnapping for ransom, the legal penalty is very heavy, the starting point is more than 10 years; "the circumstances are particularly serious" will be the death penalty. Kidnapping a "hostage" and killing him is one of the "particularly aggravating circumstances". As to whether it is in the extortion of property before or after the extortion of property unsuccessful will be "hostage" endangerment, belong to the specific circumstances of the crime, does not affect the determination of the nature of the crime. Therefore, the perpetrator can not be "torn" before and after the murder of the "hostage", as the determination of one crime and the number of standards. Although this case took place before the revision of the Criminal Law in 1997 and the Decision was applied, the reason is the same. And the 1997 Criminal Law has changed the "particularly serious circumstances" to "causing the death of the kidnapped person or killing the kidnapped person", which is both clear and easy to operate. Therefore, for both the kidnapping of others, and will be kidnapped people killed, can only be a crime of kidnapping, can not be kidnapping and intentional homicide of two crimes, the implementation of concurrent punishment. 5, correctly grasp the standard of the crime of kidnapping attempt. Attempted kidnapping, should be whether the perpetrator will be the victim hijacking and actual control as the standard. That is, as long as the perpetrator has committed the act of kidnapping others, it constitutes the crime of kidnapping attempt, rather than to extort the property whether or not the other purpose is achieved as the standard. If due to the victim's resistance or others timely rescue and other objective reasons, so that the kidnapping did not succeed, and thus failed to actually control the victim, then constitute the crime of kidnapping attempt. (C) Criminal Liability for the Crime of Kidnapping In accordance with the provisions of Paragraph 1 of Article 239 of the Criminal Law, a person who commits the crime of kidnapping shall be sentenced to not less than ten years' fixed-term imprisonment or life imprisonment, and shall be fined or have his property confiscated; and if he causes the death of the person who has been kidnapped or if he kills the person who has been kidnapped, he shall be sentenced to the death penalty and shall have his property confiscated. Anyone who steals an infant or young child for the purpose of extorting property in accordance with paragraph 2 of this article shall be given a heavier penalty in accordance with the provisions of paragraph 1. Judicial organs in the application of the provisions of this article shall pay attention to the following issues: 1, "causing the death of the abducted person", refers to the abducted person due to the use of violence or abuse in the abduction process led to the death of the abducted person, as well as the abducted person in the process of abduction of the death of the act of suicide. "Killing the abducted person" means the act of intentionally killing the abducted person after abducting the abducted person due to the failure to realize the purpose of extorting property or other purposes and for other reasons. 2, due to the law on the kidnapping caused the death of the victim or the killing of the kidnapped person, the legislation is used to determine the legal penalty is absolute, and is the death penalty, therefore, the judicial organs in the application of the application should take a very cautious attitude, strict control of the application of the conditions.

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