On The Death Penalty Of Law

â… . An Outline of the due process of death penaltyThe country takes capital punishment to control crime and maintain her security, fit methods, measures and steps, which is due process of death penalty.For safeguarding the rights of citizen, due process is also the criminal judicial procedure in which criminals awaiting for death penalty gain deserved treatment and safeguard when they face to the judge of death penalty. Since right of life is fundamental in the system of citizen's basic rights, and it's the premise of which other rights can come true. When human being's civilization develops to the extent that state conducts, which directly or indirectly effect citizen's rights, are brought into the regulatory framework category of law, against public rights being abused to manage civil rights, the judicial procedure of death penalty is necessarily brought into the regulatory framework category of due process of law, so the requirement to legitimacy of death penalty is shaped.At present, capital punishment and the judicial procedure of death penalty are paid a lot of attention, which is stemmed from the silent change of human's conception and sense of value on the death penalty. The change, one hand behaves on the questions to death penalty in itself, and the other hand reflects on the requirement to legitimacy of the procedure of death penalty, hoping that judicial procedure can not only realize death penalty in a correct and justice way, but also control and reduce death penalty, and abolish it ultimately.However, the essential starting point of due process of death process is not controlling or reducing death penalty, and also not against death penalty absolutely, but focuses on which procedure is more fit to realize death penalty than the others.Due process of death penalty aims to pursue procedural justice in itself, to make procedure more reasonable, precise and abstention, and thus become the effective mechanism of ensuring citizens not to end up life randomly and reducing wrong sentence as possible as they can. In order to, to some extent, lessen the application of death penalty but not come up to the effects of abolishing death penalty actually.â…¡. Theoretical basis of due process of death penaltyDue process of death penalty is obeyed for its intrinsic theoretical foundation: rational basement, justice basement and legal govern.1. Rational elements of due process of death penaltyRation is the reasonable choice when people arrange their actions, in terms of subject's special aims and belongings'objective attributes.Based on natural ration, natural law school puts forward two requirements about the ways how to realize natural justice: nobody can take on judge in the case relative to himself; both of the parties'opinions should be heard or they can not be judged. In essence, the two requirements are the reasonable procedural choices for justice, and illustrate classically that justice impartiality is only acquired from legitimate procedure. Due process of death penalty is also set on the rational basis of this"procedural justice".Ration of due process of death penalty behave on two following aspects:1) Rational due process of death penalty is moderate. Abstinence is, when people decide on their own actions, based on reason and favorable belief impetuous appetite, and properly control the action from aims, to acquire accordance and harmony between individuals and society. From the point view of penalty sense, due process of death penalty should try to avoid human's retaliation and impetus at the advance of legislating penal law, activating penalty and equip penalty, even though it is to prevent and control crime effectively, which is moderate, and is a penal sanction of"no other but doing it".Continental due process of death penalty principally behaves on the two aspects:on the one hand, the death penalty may be mainly to substitute by the declaration of other punishment during judicial judgment; On the other hand, the death penalty may not be executed because of absolution or probation, even though death penalty judgment is valid. 2) Rational process of death penalty possesses humanism. Humanity is that human is viewed as aim, regarding human being as topmost value, and paying enough attention to person's mentality, sensibility, freedom and rights. Party as procedural entity, whose personality and essentiality of seeking his own benefit has been esteemed, obtains humanity. The humanity of due process of death penalty represents in that, fully esteeming right; the procedural participation right and procedural relief of a criminal awaiting for execution; satisfying the assurance of basic human rights, especially the extra safeguard of a criminal's life right awaiting for execution; adequately considering suspected crime existing and the likelihood of wrong judgment as well as forbearing the application of death penalty. And even, absolving criminal from death penalty based on human's natural sensibility of mercy and tolerance.2,Justice theory foundation of due process of death penalty.Justice is a common pursuit of human society, the topmost ideal and everlasting value aim of law system, and a value criterion of building law procedure and appraising whether the law system is due or not. Designing a procedure or law should try to embody the requirement of justice. Due process of death penalty bestows deserving procedural treatment to every criminal waiting for execution and interested person by satisfying the basic standard or requirement of due process, to carry out procedural justice of death penalty.At the same time, the exact application of death penalty is maintained by due process make substantive justice come true. Because death penalty case judged on due process is a judgment based on procedural function of esteeming party's right and its will.Human is the most loyal manager of his own interests. If procedure can fully esteem the entity status of party, it may not assure every person fit for death penalty to be prosecuted criminal responsibility, however, it will guarantee innocent person not to be judged wrongly as few as possible .What's more, the result formed on due process is the result of the substantive judgment after prudent balance between individual justice and communal goals, which accords with demos'chase of judicial justice to death penalty.3,Law-govern foundation of due process of death penaltyLaw-governing, in short, is that law well instituted is at large obeyed by state and society. Law-governing, in modern sense, usually need be acquired as follows: 1) the rights of legal state are restricted by law; 2) the judicial power in law-govern acquires universal trust; 3) right is secured by law. And due process of death penalty is the legal procedure about death penalty. Generally speaking, law-govern enable the death penalty execution procedure to acquire universal obedience and to have legitimacy. In light of the law, due process of death penalty embodies the spirit of law-govern. Law-govern causes due process of death penalty is according to good law, namely, law-govern, which implies the death execution is by no means the only valuable choice. In the procedures, the nation's death execution should be adequately confined. Due process of death penalty in law-govern should provide all who is facing death punishment with law-govern procedure security.â…¢Standards for due process of death penaltyThe standards for due process of death penalty refer to whether and to what extent. The scale, and criterion used to measure. And the measure of evaluating due process of death penalty is legitimate. The scientific and reasonable standards for due process of death penalty should be in accordance with the development of mankind's civilization, namely, forward-looking. The standards should also cater to the common understanding of the public, and be universal, meanwhile the standards should be in accord with the criminal judicial reality in our country, and be practical.To coordinate these elements, the construction of standards should be guided by: 1) the principle of subject. This requires that all the established standards, should center on procedural subject's behaviors and ways of behaviors and enable the procedural behaviors of subject of right to be legitimately restrained, and properly secured; 2) the principle of universality. In the field of criminal judicature, the international common understanding to due process is the international criminal judicial regulations composed of UN Civil Right Charter and the relevant international law documents, which provides an objective evaluating standard or basis for the evaluation mechanism for due process of death penalty; 3) The principle of science. This requires the standards for due process of death penalty should not only be accordance with the objective regulations of the development of society, but also the requirement of mankind themselves. The relationship between justice and efficiency of procedure should be well processed.By referee of the international criminal judicature on the requirements on the lowest limitation of due process of death penalty, and combined with the fundamental construction of due process of death penalty in the Criminal procedural law in our country, due process of death penalty should be accordance with the following basic standards: 1) secure each one who is facing the death punishment to fully and significantly take part in lawsuit; 2) secure each one who is facing death punishment to actively and effectively use the right of pleading; 3) to give each one who is facing death penalty procedural treatment he is deserved; 4) fully secure the rightful trial for each one who is facing death penalty.; 5) enable each criminal awaiting for death penalty to exhaust all the procedural salvation methods or possibilities.â…£The legitimacy of death penalty procedure in ChinaResearches on due process of death penalty in China are divided into the legitimacy of pre-trial of death penalty, review procedure, execution procedure, retrial procedure and remitting procedure on death punishment.1. The legitimacy of pre-trial on death penalty The legitimacy of pre-trial on death penalty mainly discusses on both against testifying the tin by oneself and securing the one who is facing death penalty to acquire virtual lawful help.1) People who shall be subject to criminal prosecution cannot be compelled to testify against oneself. It is necessary to the inherent fairness of criminal proceedings. The pre-trial proceedings of death penalty in China should perfect from five aspects according to this principle: The suspects and defendants facing the penalty prosecution have the right to be free from self-incrimination by law, and law should set up some procedures to ensure that right not to be violated; To promote the authorities in pre-trial investigation and prosecution activities, the prosecuted organs should take on the testifying responsibility of proving the authorities of getting the statements of suspects and defendants; The investigators should strengthen to collect and investigate objective evidences roundly, not relying on the statements; As to the cases about country's secrets, they should be referred to the state security organs, the armed forces or the national security organs, to review the secrecy that can be confirmed, otherwise, the investigators cannot refuse the lawyers in the investigation stage for the reason that the cases refer to the state secrecy; Taking the criminal suspects into custody should be separated from the functions of the investigators.Interrogation should be carried out in the detained place.2) To ensure the people facing the criminal prosecution to obtain the virtual legal assist, the pre-trial proceedings in China should consider that offering the national free legal assist to the criminal suspects facing penalty. Secondly, to ensure the criminal suspects facing penalty to obtain the virtual defense in the pre-trial proceedings stage, as a legitimate pre-trial procedures, the laws should confirm the status of the defenders of the lawyers in the investigation stage.; and provide convenient procedures to allow the criminal suspects meet and communicate with the lawyers and ensure the meetings and the communications not to be bugged and reviewed; the investigation and prosecuted organs have the obligation to cooperate with lawyers informing files, and fully protect the right of referring files and investigating and collecting evidences for the defenders.2. The legitimacy of penalty judgment proceduresThere are main opinions about the perfecting the legitimacy of penalty judgment procedures:1) The proper penalty proving standards will divide the testifying sorts of penalty cases appropriately into two kinds: one is criminal cognizance of"whether the accused crime", the other is weighting of the penalty of"whether the accused should be imposed death", and determine the testifying standard of penalty cognizance in the extent of"identified doubt". As to the proof whether the accused should be sentenced penalty, when the prosecution request "aggravated" or "harsh" punishment causing the penalty applicable, it maybe lead to the accused facing the circumstances of penalty magistrate., and it requests the corresponding evidences to prove and ensures them exist in no doubt. Otherwise penalty cannot be applied but other penalties are not exclusive.2)To enable the defense rights of the defendant in the trial getting fully protection, the proper penalty judgment procedures should make some points on the procedure: Firstly, the court appoints the lawyers for the accused to enable them obtain the virtual and valid legal assist. Secondly, to ensure the accused and the defendant to have condition of preparing for court defense, including that the procedure should ensure the defendant to have full time to prepare for defense and ensure the defendant to collect necessary evidences before the judgment; thirdly, to ensure the accused and the defendant to carry out the effective curt testimony.3)The functions of the first trail procedure of penalty should be brought into play fully, which enable the accused facing penalty fully have the right of court judgment. In terms of procedure as follows: If the collegiate is not sure about the major or difficult penalty cases, it can submit to the committee to consider the cases carefully, but don't need to seek the discussion of the higher court; The first adjudicate should explain the reason for the death penalty fully; The principle as"the emperor"in the criminal procedure: the principle of presumption of innocence and the principle of no punishing suspected crime which make the procedure rights of the accused facing penalty are respected; Appropriate separation of conviction and sentencing procedures.4) The legitimacy of second instance procedure mainly embodies in :Procedure should fully esteem capital criminal's right of appeal execution; Second instance procedure of death penalty should hold a court; second instance procedure should guarantee capital criminal's right of acquiring attorney's help; the legitimacy of death penalty judgment; in second instance procedure, keep the principle of"not to increase a defendant's criminal punishment in trial on appeal"; procedural legitimacy of"death penalty case be submitted to the adjudication committee"3. Legitimacy of review procedure of death sentences setting up review procedure for death sentences is mainly to guarantee human right of a criminal awaiting for execution; Offer procedural remedies to the righting getting into adverse circumstances; unify the penal system of death penalty .As a result, due review procedure of death sentence should embody in the three following procedural functions:1) The activating mode of review procedure of death sentences should adopt our positive mode.2) In regard to trial mode of review of death penalty, If necessary, examination of view of death case should hold a court; The examination procedure processes on the mode of central counsel; The members of collegiate court should inquest the accused of death penalty in person for no exception; Offer defender to the party in review of death penalty: Firstly, review court has the obligation of imparting defendants to consign defender; Secondly, when the party is unable to consign defender, the court should designate attorney for him to offer legal aid; thirdly, even if not holding a court ,judge of review should inquest defendant in person and hear defender's opinions to the eyes; Give the choice of appealing to the party or his close relative or the defender he consigns. The verdict of review of death penalty should be declared in public. After Supreme Court approves death penalty and declares the verdict, give party a period of a half to one year to the party in order to decide to appeal or not, and while the period is expired, subscribe the death warrant.4. Legitimacy of execution of death penalty.In the side of death execution, our country has both death penalty with immediate execution and death penalty with a suspension of execution, not executing death penalty with conditions and executing imprisonment punishment legitimacy of execution of death penalty is divided into the two parts of immediate execution and a suspension of execution:1) Legitimacy of death penalty with immediate execution. The procedure of death penalty with immediate execution regards the spirits of humanism and human solicitude as its intrinsic request the concrete manipulation should follow: The execution procedure of death penalty should not be carried through on public occasion with other aims; It should try to be carried through by the way of alleviating pains; Before execution ,meet the main body's aspiration and his rational request;The execution of death penalty is not a secret procedure but a open one ,and should allow the casualty and media to participate in it as witness.2) The legitimacy of death penalty with immediate execution in place of death penalty with a suspension of execution .This way is popular to people because it can lessen and restrict death penalty and save the life of capital criminal from damage. As a result, legitimacy of death penalty with a suspension of execution exerts its function of lessening actual execution of death penalty.Consummating the legitimacy of death penalty with a suspension of execution need clarify the mutual relation application of"crime is quite severe"and'need not to execute immediately'.In procedure: 1)Only take into account penalty in the first the requisite of applying death and later consider declaring immediate execution or a suspension of execution.2)Because of intended crime , the punishment should be changed to immediate execution of death penalty , which should be executed after the two-year probation period expires. 3) During the probation period of a suspension of execution, criminal who has both intended crime and major rendering meritorious service, should be correctly commuted by balancing the"crime"and"merit".4)Judicial interpretation more definitely prescribes. Life imprisonment changed from death penalty with reprieve can not be commuted once more; fixed term imprisonment changed from death penalty with reprieve can not be paroled.5. Legitimacy of retrial procedure of death penalty Retrial procedure is the relief procedure which reviews the wrong effective sentence and judge. At present, legal provision in our country dose not consider that the criminal awaiting for execution possibly puts forward appeal or applies retrial after effective judgment of death penalty. That's the same as depriving capital prisoner's right of applying retrial, which is remarkably unfair, in terms of the standard and requirement of procedural justice.The legitimacy of death retrial is mainly achieved by consummating the following things: 1) In the procedural duration from approving the review of death sentences to subscribing death warrant, party should be given appareling time of a half or one year, and make capital prisoner have plentiful time to accept judgment, put forward appealing by himself, his close relative or his defender as to obtain the choice of submitting to judicial authority to take retrial to potentially wrong death sentence by procedure of adjudication supervision.2) The judgment to review of death sentences should set up corresponding informing procedure, imparting correctly the content of valid judgment and the way of appealing to capital prisoner, his statutory agent, defender and close relative, making them appeal to court or procuratorate according to law.3) When the criminal , his close relatives and his counsel appeal, only after checking by authority and judicial organization entitled to eventful power of death penalty , and affirming reason of appealing not being and making ideas in writing , the organ which approves originally death penalty just subscribes death warrant and execute it.6. Legitimacy of absolution procedure of death penalty. With the flux of ages, absolution gradually becomes the adjustor of criminal policy by which modern counties adjust social conflict, balance varieties of value conception and remedy the shortage of adjustment by law.A state still preserving death penalty should affirm every capital prisoner's right of applying absolution in criminal procedure and give him procedural safeguard so that the legitimacy of death penalty is represented.Building and perfecting our due procedure of death absolution needs all-sided improvement, such as the range the mode and the considering factors of death penalty: 1) all of the immediate capital criminals could be brought into the range of death penalty; 2) absolution death is carried out by the mode of amnesty; 3) prescribe rationally the considering factors of balancing death absolution, like, as a sane person, he does not affirm fully the defendant's death penalty by reason. Criminal who loses the abilities of whole some person or becomes a member of weak social colony in minorities; when criminal definitely indicates repentance and the will of staring with a clean slate, we can think the executing reasons are not sufficient and absolve him from death. All of above can be regarded as the balancing factor of absolution.As for the legitimacy of concrete procedure of death absolution, it's mainly about the procedure, which has been discussed above. Death absolution is not exempting all the punishment of criminal but only not executing death penalty, so other kinds of punishment are executed to punish the criminal after death absolution instead. As to me, after death absolution, court should change the original sentence to life imprisonment, and simultaneously declare that parole is not allowed; no making contributions mean no commutation after commutation, the term of imprisonment practically enforced cannot be less than 20 years.Epilogue:The cognition of due procedure of death penalty is a relative and gradual course, and it is not limited. Engels ever said that we only could cognize things in our era condition, and what extent these conditions were to, what extent of our cognizance was to. In view of the stability of system, my research on due procedure of death penalty does not aspire after a dauntless exploration but"relatively rational"realistic effect advocated by Mr. Long Zongzhi, so as to promote the development of due procedure of death penalty in our country. It's undeniable that the developing trend in future may be the final abolition of death penalty .Only hope that all of the death sentences and executions including the last one are carried in due procedure of death penalty recognized pervasively.