論綁架罪的基本構造

綁架是以人質的人身安全為籌碼向第三人換取相應對價的行為，在構造上與搶劫罪相似，但綁架行為同時壓制了人質與第三人的意志自由，迫使第三人接受人質與對價的交換關係，因此綁架罪的法定刑遠超搶劫罪。要成立綁架罪，行為人對人質人身安全的控制力應足以發動第三人對人質的救助義務。在以財物為對價的綁架中，第三人與人質的人際關係及實際擔憂狀況決定了第三人受強制的程度。當第三人意志自由並未被完全壓制，擄人勒贖行為可能僅成立敲詐勒索罪，甚至僅單獨評價對人質的侵害行為;在以安全為對價的綁架中，不論是為抗拒公民扭送還是警察抓捕而劫持人質，原則上成立綁架罪;在以感情為對價的綁架中，通過自救行為的法理適用，應將索要或挽回感情的欲求排除在不法目的之外，原則上否定綁架罪的成立。

Kidnapping is an act in which the perpetrator takes the personal safety of the hostage as a bargaining chip to exchange for a corresponding consideration from a third person. In terms of construction, it is similar to the crime of robbery. The act of kidnapping, however, suppresses the free will of both the hostage and the third person simultaneously, making it inevitable for the third person to establish an exchange relationship between the hostage and the consideration. Therefore, the legal punishment for kidnapping far exceeds that for robbery. The establishment of the offence of kidnapping requires that the perpetrator􀆳s control over the physical safety of the hostage should be sufficient to motivate the third person to implement the obligation to rescue the hostage. In the case of kidnapping for financial consideration, the interpersonal relationship between the third person and the hostage and the real apprehension determine the extent of the coercion to which the third person is subjected. When the third person􀆳s free will is not completely suppressed, the act of kidnapping for ransom may only constitute the crime of extortion, or even be convicted only as a separate offence against the hostage. In the case of kidnapping for personal security, the crime of kidnapping is established in principle, regardless of whether the hostage-taking is aimed to resist a citizen􀆳s arrest or a capture by the police. In the case of kidnapping for consideration of affection, through the application of the legal theory of the self-help behavior, the desire to claim or redeem affection should be excluded from the illegal purpose, and the establishment of the crime of kidnapping is then negated in principle.