绑架罪与抢劫罪均是司法实践中常见的犯罪，理论上对此二种犯罪存在较多的争议。《刑法修正案（七）》对绑架罪设置了“情节较轻”的法定刑降格的情形，但就该情形的具体适用而言，理论上存在争议。另外，该情形是否存在犯罪未遂也是一个亟待解决的问题。绑架罪与抢劫罪在犯罪构成上具有一定的关联性。在司法实践中，部分案件与这二种犯罪的犯罪构成均有一定的吻合之处，故需要厘清这二种犯罪之间的界限。抢劫罪的主观方面包含“非法占有目的”。在抢劫被害人的财物作为犯罪工具加以利用而在事后又丢弃的情况下，是否能够将此财物计入抢劫数额的问题的解决对抢劫罪的量刑有着重要影响。 本文从孙家洪、濮剑鸣等绑架、抢劫、故意杀人案入手，结合该案案情，分析了与绑架罪和抢劫罪有关的诸多典型问题，对其分别进行了较为具体深入的剖析，并提出了个人的观点，以期为解决司法实践中的相关问题提供思路。 绑架罪中“情节较轻”的规定属于抽象的量刑规则，对适用该规则的具体情形宜作抽象的解释，以法益侵害后果的严重程度来衡量是否满足“情节较轻”的要求。绑架罪中的“情节较轻”是确定法定刑降格需要满足的基本条件；相较于犯罪未遂“可以比照既遂犯从轻或者减轻处罚”的规定，“情节较轻”的规定具有适用上的优先性。 绑架罪与抢劫罪在犯罪构成上存在诸多差异，其核心区别在于犯罪主观方面的不同。绑架罪的成立要求具有“利用第三人担忧”的意思，而抢劫罪的成立则无此要求。因此，须有证据证明行为人确有“利用第三人担忧”的意思，方可认定为构成绑架罪。 抢劫罪在犯罪主观方面要求“以非法占有为目的”。“非法占有”不要求永久性地据为己有，暂时性地管领、支配财物也可满足“占有”的要求，但仅在行为的严重程度达到值得科处刑罚的场合，才能够以犯罪论处。故将被抢劫后作为犯罪工具或逃跑工具的机动车价值计入抢劫数额的规定具有合理性。 在孙家洪、濮剑鸣等案中，行为人绑架毕某之子且未遂的行为，其法益侵害程度较轻，符合“情节较轻”的要求。为避免重复评价，应按绑架罪“情节较轻”的规定，“处五年以上十年以下有期徒刑，并处罚金”，不再适用犯罪未遂“可以从轻或减轻处罚”的规定。孙、濮等人劫持燕某的过程中，没有利用第三人对燕某人身安全担忧的意思，故其行为不符合绑架罪的构成要件，应当以抢劫罪论处。孙、夏等人劫持燕某机动车作为犯罪工具，其主观上具有“非法占有目的”的目的，且该行为对被害人的人身及财产权益造成了严重侵害，因此，该机动车价值应当计入抢劫数额内。

Both the crimes of kidnapping and robbery are common important charges in the judicial practice, and there are many theoretical disputes about the two crimes. The "Amendment to Criminal Law (Seven)" stipulates the statutory mitigating circumstances of penalty for the “less serious crime”. However, cases that the regulation applies to are not specifically described, thus, over which the theoretical circles dispute. In addition, the problem that whether such regulation may be applied to the case of an attempted crime remains to be solved. There is a certain correlation between kidnapping and robbery in terms of the constitution of a crime. In judicial practice, some cases are relatively special, which are consistent with the constitution of the two accusations, so it is difficult to differentiate them. Therefore, the core differences between the two accusations are required to be clarified. In case of the crime of robbery, the requirement of "being with the purpose of illegal possession" shall be satisfied in terms of the subjective aspect of a crime. In the event that the property of the victim is robbed and used as an instrument of crime and discarded afterward, the answer to the question that whether such property may be included in the amount of the crime of the robbery is of great significance to the measurement of the penalty of such crime of robbery. This paper carried out analysis of many typical problems related to the crime of kidnapping and robbery by starting from the kidnapping, robbery, intentional homicide cases committed by Sun Jiahong, Pu Jianming et al. combined with the details of the case and in-depth analysis of those problems respectively and put forward personal point of view so as to provide ideas for solving the relevant problems in judicial practice. The regulation on the "less serious" crime of kidnapping is merely an abstract sentencing rule, however, the specific circumstances that it applies to haven't been specified by law. Therefore, it is appropriate to make an abstract explanation for it, and to measure whether the requirements of "less serious crime" is satisfied with by to what degree the legal interests of the victim has been infringed. In addition, it is stipulated by the law that in the event that a crime is attempted, the lighter punishment or mitigation of punishment may be conducted. In the case of an attempted crime of kidnapping, it will be in violation of requirements for prohibiting repeated evaluation in the criminal law in the event that regulations on penalty for attempted crimes are applied to cases where there is no serious consequence caused and which satisfies the stipulation of "less serious crimes". The regulations on the "less serious" crime of kidnapping, which are the legal degradation conditions for determining the starting point of the sentencing, may be first applied to compared to the regulations that "lighter punishment or mitigation of the punishment" may be carried out in case of an attempted crime. There are many differences in the constitution of the crime of kidnapping and robbery, among which the core differences lie in the differences in subjective aspects of a crime. In the event of a crime of kidnapping, the requirement of "taking advantage of the worry of a third party" shall be satisfied, while the crime of robbery is otherwise stipulated. Therefore, a crime may be identified as the crime of kidnapping only there is evidence to prove that the doer does have the intention of "taking advantage of the worry of a third party". In case of a crime of robbery, the requirement of "with the purpose of illegal possession" in subjective aspect shall be satisfied. "Illegal possession" refers not to the permanent illegal possession. Temporary management and dominance of the property may also meet the requirements of "possession". However, only an act satisfies the requirements of penalty, can it be dealt with as a crime. The provision that the value of the motor vehicle which is robbed and used as an instrument for committing the crime or escape shall be included in the amount of robbery in the "Opinions on Several Issues concerning the Application of Law to Criminal Cases of Robbery and Snatching" is rational. According to the analysis of the above criteria, in the criminal case of Sun and Pu, the attempted act of the doer to kidnap the child of Bi is in line with the requirements of the "less serious crimes" due to the lesser infringement caused to the legal interests of the victim, so "the fixed-term imprisonment of more than five years and less than ten years along with the penalty" shall be applied in accordance with the provision of "less serious crime" of the crime of kidnapping, whereas the regulation that "the lighter punishment or mitigation of punishment may be conducted” in case of an attempted crime may not be applied to any longer. During the hijacking of Yan by Sun and Pu, no intention of "taking advantage of the worry of a third party" is involved, which does not conform to the constitution of the crime of kidnapping. Therefore, it shall be dealt with as a crime of robbery. The motor vehicle of Yan was hijacked by Sun and Xia et al. and used as a tool for committing the crime, which subjectively conforms to the requirement of "being with the purpose of illegal possession", and such act caused serious damage to the victim's personal and property rights, so the value of the motor vehicle shall be included in the amount of the crime of robbery.