析未成年人的绑架罪主体问题——以《刑法》第17条第2款的解读为视角

理论上和实务中对《刑法》第17条第2款的规定存在不同理解，引起了《刑法》分则中所规定的相关犯罪在主体构成要件上的争议，未成年人实施绑架行为并杀害被绑架人的认定就是其中之一。通过对《刑法》第17条第2款规定的解读，提倡以“罪行”说来解释已满14周岁不满16周岁的人所应承担刑事责任的行为范围。已满14周岁不满16周岁的人实施绑架行为应不负刑事责任，对绑架过程中杀害被绑架人的行为应认定为故意杀人行为，负故意杀人行为的刑事责任。

On the Subject of the Crime of Kidnapping for Minors——With the Perspective of Paragraph 2 of Article 17 in Criminal Law

There are different understandings in regulations of Paragraph 2 of Article 17 in Criminal Law both in theory and in practice, which leads to disagreements on subject of related accusation regulated in specific prowsions of Criminal Law; and people＇ s opinions on the determination of minor＇ s kidnapping behavior and killing the kidnapped are different. By interpreting Paragraph 2 of Article 17 in Criminal Law, the author suggests that the behavior who have reached the age of 14 but not of 16 should be responsible for should be determined according to their criminal behavior. And those who have reached the age of 14 but not of 16 should not be responsible for their kidnapping, while those who kill the kidnapped should be determined as committing murder and bear criminal liabilities.