A Study On The Substantive Conditions Of Application Of Death Penalty

Person’s life should be respected.Based on respect for the values of humanlife, we cannot find justification for the state to kill its members from autilitarian perspective or retribution.In this sense, the death penalty should beabolished.However, when we face death penalty problem in China, commonpeople in the heart of the retribution idea ingrained and state enterprises by thedeath penalty penalty Hebei to curb the serious crime and political inertia, so wehave to accept the death penalty can not be abolished in the short term.However,the number of China’s death penalty is too much, it not only makes China underfire in the international dialogue on human rights, but also difficult for thecurrent building of a harmonious society in China, the background of thepeople-oriented.Therefore, we must limit the application of the death penalty hasnaturally become the official and the consensus of scholars agree.How to apply the restriction of death penalty, need to find ways of realizingthe rational.The death penalty legislation control constrained by legislatorsheavy thinking, strong public concept of retribution and legislativecharacteristics, and can not bear too many expectations.Relatively speaking, thejudicial control of death penalty is the realistic path of limiting the application ofdeath penalty.If it is put in place, will greatly change the status quo of China’sdeath penalty is widely applicable.More importantly, the judicial control ofdeath penalty the results could also support the death penalty legislation controlprocess in fact, promote the death penalty legislation to control the paceof.Therefore, in the present China’s death penalty is widely applicable andshould be changed in the context of control than the death penalty, legislation,the judicial control of death penalty should be the only choice and effort direction of reality.This paper is research in the above practical and academic background ofthe real conditions of application of death penalty.There are four chapters in thisthesis.The first chapter:Outline of the substantive conditions of death penalty inthe.Study on the essential condition on the death penalty in the need to firstdefine its content.According to the provisions of article first of criminal lawforty-eighth, on the death penalty application understanding, need to considerthe way of death penalty distinction.In other words, the death penaltyapplication content firstly depends on the understanding of the meaning of thedeath penalty.To understand whether from the general meaning of real propertyand death death has deprived the criminal life, or limit the application of thedeath penalty based on this purpose to interpret, the death penalty shall refer tothe immediate execution of death penalty.From this point of view, substantialconditions of death penalty in the content should include the "extremely seriouscrime" and "must be executed immediately" two conditions.Among them, theformer is the primary essential conditions of death penalty, the latter is the keysubstantive conditions of the application of death penalty.The reason why "mustbe executed immediately," as the key substantive conditions of the application ofdeath penalty, mainly because of, will be "extremely serious crime" as the onlyreal conditions of application of the death penalty, may actually lead to areprieve of virtual home, is not conducive to the limitation of death penaltyapplication; only that the applicable conditions of the death penalty is referred toas "extremely serious crime" and "must be executed immediately", can beapplicable to real restrictions on the death penalty in fact.Study on the application of the death penalty for the substantive conditionsare in urgent need of limiting the application of death penalty.Because theexisting legislation "extremely serious crime" and "must be executed immediately" the meaning is more abstract and vague, the case of sensational inrecent years show, there are serious problems in the judicial practice to judgeconditions hold: the death penalty on the death penalty applicationunderstanding showing a chaotic situation, this will inevitably lead to theessence of the death penalty application of inequality, the objective to expandthe scope of application of the death penalty.On the other hand, for theimplementation of justice control of death penalty, whether in fact and valuedimensions, entity control judicial death--strictly grasp the substantiveconditions applicable death penalty is one of the key.In view of this, shouldattach great importance to the research of the application of death penaltysubstantive condition.In terms of the specific research method, make up thecracks between clarity of the existing legislation and legal principle of crime andpunishment to the required, explain restrictions need substantial conditions onthe death penalty, which means analysis methods need to pay attention to thenorms of criminal law science technology.In this process, attention shall be paidto the comprehensive application of the specific method of interpretation.The second chapter: the meaning and the judgment of the most seriouscrimes.As the first substantive conditions of application of the death penalty,"extremely serious crime" is the first pass of the death penalty, its importance isself-evident.Discussion on "to" extremely serious crime meaning, need to firstexamine the existing practice of academic point of view and practice, the keypoint to define the problem, and to avoid duplication of research andreality.Since the97purposes of criminal law, the academic discussion on"extremely serious crime" meaning has never ceased.Public opinions aredivergent. Point of view, to provide a different perspective for us to understandthe "most serious crimes" true colors, but it is behind the consensus view whichhas not yet reached the fact.When we will turn to the judicial practice, alsoregret that, whether the existing judicial interpretation of the death penalty, or the judge works--the death penalty for the book,"the most serious crimes"understanding of the meaning of chaos.This is mainly derived from the"understanding of meaning and normative property crimes" unclear.The methods for explicitly "extremely serious crime" meaning, analysis iscrucial for technical specification of science.Extremely serious crimes "to" thelimited interpretation, should first understand the meaning of "crimes andspecification" attributes.In fact, whether it is based on the theory ofinterpretation of law regulation,"extremely serious crime" in "crimes" shouldrefer to the crime has its standard, attribute is objective harm and subjectivecriticism; and, whether it is literal interpretation based on the position or thesystem interpretation perspective,"normative attribute crimes" shall not includepersonal danger of.On this basis,"the most serious crimes" meaning they stickout a mile, subjective criticism of human behavior are the highest degree ofobjective harm that is the behavior and behavior.Compared with the extremely serious "and" crimes clear meaning,extremely serious crime "to" the judgment is a more importantquestion.Extremely serious "to" crimes, shall adopt methods class judgment stepby step."The degree of objective harm extremely serious crime" in the crime ofthe performance is: the nature of the crime is the life of the invasion, theconsequences of the crime and the victim’s death;"extremely serious crime" inthe level of subjective criticism of the actor’s performance is: forms of crime isdirectly intentionally, the motive for the crime was extremely despicable,criminal means is especially cruel, responsibility is not weakened.Especially,when the crime object as the young woman is weak, vulnerable groups, theestablishment of more can’t deny the conclusion.The third chapter:Meaning and judgment must be executedimmediately.As the key substantive conditions of application of the deathpenalty,"must be executed immediately" determines the death penalty will eventually be applied, so it is a more important theoretical and practicalproblem.It is emphasized, the criminals "to" extremely serious crime, and cannot think "to apply the death penalty for the principle, applicable to the sentenceas exception", or on the contrary.Investigate its reason,"extremely seriouscrime" is only the first substantive conditions of death penalty and death, thenext need to choose what kind of way, must not selective "whether to carry outimmediately" judgment, if confirmed the conclusion, it should be when theapplication of the death penalty, if the negative answer, just only the applicationof suspended death sentence.In this case, simply does not exist "principle andexception".As the key substantive conditions of application of the death penalty,"must be executed immediately" not only limit the scope of application of thedeath penalty, but also for the application of the death penalty to providesubstantial basis.Therefore, the need for "must be executed immediately"independent judgment positive.The clear before "must be executed immediately" meaning, main view ofthe need to review the academic.Because the practice of this understanding isnot systematic, so no longer will the single review.Five representativeviewpoints in academic circles, in addition to utilitarian theory, or based on the"most serious crimes", or based on the victim’s pardon, or use the enumerationmethod, although it has some reasonable elements, but there are someproblems.In the final conclusion, not conducive to the limitation of deathpenalty application, but expand risk death penalty.Note that the immediateexecution of "must", interpretation of the restrictions, not from the "extremelyserious crime" of understanding, the main reason is that,"extremely seriouscrime" is the first substantive conditions of the application of death penalty, bothlines between the death penalty and life imprisonment, it is decided whether "thepremise must be executed immediately." the.From the justification of penalty according to the paper,"extremely serious crime" in accordance with the requirements of retribution,"must be executedimmediately" fit purpose punishment proposition.Limit the application of thedeath penalty based on the position of ", the death penalty criminals" to the mostserious crimes, embodies the justice of retribution, only for one must beperformed immediately before the final application of the death penalty, itembodies the legitimacy of prevention.Therefore, the understanding of themeaning of "immediate execution for" must, need to look at the application ofthe death penalty in the prevention of crime objective necessity.Limit theapplication of the death penalty based on the position of understanding ", mustbe executed immediately" from the necessity of crime prevention, it means thatthe highest degree of sexual recidivism "only for those criminals who havecommitted extremely serious crimes" in danger,"must be executed immediatelyto".In other words,"normative implications must be executed immediately"refers to, if not "must be executed immediately," criminals "then the" extremelyserious crime may once again the implementation of serious criminal actsendangering society.Obviously,"must be executed immediately" the essence liesin recidivism risk according to the crime person has reached the highest level.Soto understand "must be executed immediately," according to the current criminallaw spirit: the degree of criminal recidivism risk based on the different, shouldchoose and change the penalty execution.Recidivism risk entity is actually a stage of criminal antisocial personalitydynamic development, reflects the criminal and law opposite personalityattitude.Must admit, for recidivism risk prediction and judgment is undoubtedlya great challenge.However, we can not because it is difficult to predict orjudgment of recidivism risk, is willing to make "the ostrich" head buried in thesand, if give up on "must be executed immediately" for recidivism risk standardjudgment, judicial wisdom and policy on ethics forgiveness theory or judicialassurance level, in fact is the perceptual judgments of criminal life depends on the "love can only be sensed", no doubt will become worse.Recidivism ispointing to the unaccomplished crime, but the judgement on the basis of it thedeep in the existing reality, dangerous crime, not abstract or hypothetical, butexists in the crime and the crime of the crime before, after the offender’sperformance and attitude to reality, shall determine the existence and size from itin reality.The basic factors affecting recidivism risk degree includes the crime ofplot, plot and plot of crime after the crime.However, before the crime plotinfluence, role of the crime plot is the presumption of crime recidivism riskpeople reach the highest degree, the final decision is the role of crime after theplot.If the surrender, meritorious service and other legal circumstances and civilcompensation, victim understanding to crimes that sincere repentance, canfurther show that the recidivism risk degree to reduce, not that of the crimeshould be "must be executed immediately.".Conversely, if recidivism risk theplot can not prove that the criminals should be immediately reduced, theexecution of the "must".The four chapter:The relationship between legislation and public opinionand applicable death penalty.Undeniably, the first paragraph of articleforty-eighth of the penal code defects about the death penalty applicationrequirements, through the norm of law interpretation of the restrictions in orderto make clear its applicable, is upset.Therefore, according to the criminal lawforty-eighth stipulation, put forward the following suggestions:1, clearlystipulates: the application of the death penalty, should be particularly careful;2,clearly stipulates: the death penalty criminals to the most serious crimes.Theremust be performed immediately, it shall be executed immediately sentenced todeath; for which need not be executed immediately, should be sentenced todeath was suspended for two years;3, clearly stipulates: extremely serious crimerefers to the objective harm and subjective criticism of two has reached thehighest degree; must be executed immediately refers to recidivism risk the criminal is larger, if not immediately, then there is the possibility ofimplementation again extremely serious crimes.In judicial practice, the existence of public opinion influence theapplication of death penalty, death penalty application process of Yao’s case andthe Li Changkui case is a case in point, although the adjudicative document twocase did not directly show.It may be "pays attention to the unity of legal effectand social effect" of the relevant law concept.Because the public opinion is acomplex, content with uncertainty and volatility, but also easy to be misled, so atthe discretion of the death penalty, should not consider public opinion in thiscase external factors.It is also based on the judicial independence of courseconclusion.However, in the premise of accurate grasp of public opinion contents,the judiciary should respect public opinion, but only to respect freedom ofexpression.In modern society, the state is the people’s state, people shouldparticipate in the state power operation and supervision of state poweroperation.In contemporary China, social public opinion the death penaltysuitable occasion should be in the legislative activity is related to the deathpenalty, but not specific judicial activities, of course, for the specific judicialsupervision essential.When conditions are ripe, may establish the jury system,the specific trial by reasonable procedures selected jurors participate in deathpenalty cases, in order to reflect public opinion.Need to pay attention to is the bridge of communication, in judicial practiceof judicial power and public opinion is to strengthen the argument.Strengthenthe death penalty judgment of argument, it is an inherent requirement of the ruleof law, the rule of law is the external support.In the former, the basis of the ruleof law is that everyone is equal, so the premise, deprive the defendant the verdictof life not only with the force of the law itself, but in how to make peoplebelieve the law force can’t be truculent and unreasonable.Therefore, therequirements of the rule of law based on, the death penalty judgment must reasoning fully self-consistent, ensure the.In the latter, the rule of law need torun the impartiality of judges as to guarantee.Through a clear declaration of theidea of law ruling, the judge deepened the public to make the decisions notdogmatic understanding, which in turn enhances the public to judicialinstitutions as legal guardian trust.