Research On The Death Penalty With Reprieve

The system of the death penalty with reprieve penal is one of the two unique penalty system and the application of the death penalty system in our country. Differing from previous research on the death penalty with reprieve, this paper carries out analysis and feasibility studies comprehensively and systematically and demonstrates the central role of the system for our the judicial control of the death penalty in our country.This thesis is composed of seven parts:Part one was the preface. At first the paper defined the reprieve system existences in the macroeconomic area of the death penalty system, and plays an irreplaceable role which any other penal system can't do,so the role of judicial control of the death penalty reflects the systematic research's value and significance. Depending on the conclusion of status research and reflection of gaps and questions, the focus study in this article is on systematic content of judicial theory and practice .Part two is about historical review and creation of the system.Based on the view that the system was created from the death penalty, and depending on research of the death penalty's creation,development,essential character,the impact of the cautious penalty on the death penalty,the final goal of mitigation penalty, and through the history traceability system exploration,and the progressive origins of idea,the evolutionary established and originate system, the paper puts forward a view that the earliest practice of the system was in foreign countries, but as a first opinion was established in China. The paper Proposes the drafting issue of Chinese Criminal Law marks the significance of the first opinion. Through legislative, judicial establishment research, the paper shows that the system is fairly pefect within the substantive law, procedural law, and the judicial operation of the system embodies three major elements: the value of justice, the guidance of law principles, the auxiliary of judicial experience.Part three is about ontology research. The research focus on the concept and defines the system as: a kind of applicable death penalty system established for the criminals who is sentenced to the death penalty and should not be immediately executed, and will be refereed specific penalty according to the findings during the 2 years suspended. The general understanding can be Summarized as the certainty of applicable objects, the specification of applicable conditions, the statutory of implementation process, the uncertainty of implementation consequences, and the applicable compound. The paper indicates particularly that the compound for both the life penalty and freedom penalty sentence is the key characteristic. The paper indicates the unique legal value for the system within the penalty system: First, rational supplement for configuration, the rigor for procedural and evidentiary standards for concept. Through the analysis for function and purpose of the system, the paper indicates special functions of judicial control and judical remedy for the death penalty, and its fundamental purpose can be located in the protection of human rights, from the perspective of direct purpose, the general purpose can be located in the prevention and special prevention characteristics for the life sentence. The paper also proposes that the system shows transitional, incidental, expected results of appliance, and indicates that the system's legal property should be located in conditional appliance for the death penalty.Part four is on the justified reason for the system. This paper holds that stir of the system has a reasonable basis. Based on the discussion to the retention or abolition of the system, the reasons of why the system should be reserved in China are set up in foundation of society and public recognition. To the basis of society, the system should reflect the public policy under the particular society wishes and goal, and should show political and negative evaluation, deprivation of the rights and interests of people within the society. Superstructure's influence is exposed in the specific impact that the system continues to adapt to the progress of development and changes. The system accord the mitigation of punishment trends, and its austerity of criminal law can reduce the cost must and the social costs for crime to increase society's total income, so that the allocation of resources gets better returns. The system formally founded in China, China's traditional law and culture imprint reflected very deeply. The ideas of the cautious penalty have laid a culture basis for the formal system's foundation. Reservation for the death penalty applies to the grim realities, but in order to adapt the principles of suiting punishment to crime, the system shows fair and judical legitimacy under the application of the system for the defendant who adapts to certain legal or discretionary sentencing cases, so the public recognition shows the necessity of reservation.Part five is on the legal application. This article firstly introduces the basic legal status quo, and shows that the criminal policy has an extremely important role for the guidance of criminal legislation and the administration of justice. In our country, the criminal policy made the product of the system into reality. Through the empirical analysis of application, the paper affirms the application has more possibility to develop. Based on the analysis of the status quo discretion, this paper tries to learn from the German justice subsumption and deductive reasoning mode to elaborate. The paper shows that the discretion of the specific penalties should systematically consider the severity of harm to society, subjective malignant and personal dangerousness. According to judicial results, according to the specific circumstances of the magistrate the discretion of the outcome of force, the paper shows a discretion standard volume which is divided into the discretion with decisive circumstances, the discretion with individual circumstances, the discretion with reverse competing circumstances, the discretion with evidence flaw. The paper probes some complex questions within the implementation change which includes both entities and procedures. This article holds that a deliberate crime should be treated differently during the execution, and should firstly consider how to deal with a defendant who committed a deliberate crime during the execution and does major rendering meritorious the implementation change. On the basis that the consequences should be treated differently, the paper should stick to general principles of suiting punishment, the referee should consider the result as a common measure of whether or not to continue the implementation of the death penalty, the extremely serious crimes standard is applied and combined to determine the final penalty. The paper sticks that such deliberate crime should be treated differently and so to determine the final penalty. A pregnant women can not be executed the death penalty and should be commuted. At the same time, the paper discussed how to deal with the missing criminals and parole elaborate. In the end, the paper brings up judicial defects, and put forward a key question on how to deal with.Part six is on perfection. From the legislative level, this article proposes that legislation's technology and contents should be amended or defined, such as "extremely serious crimes," the different treatment of deliberate crime and major rendering meritorious coexisting within the implementation change, a criminal can be paroled, the paper also proposes a sample Criminal Code of the reference. From the procedural legislation, the paper proposes legal review should in favor of the defendant (appellant), limited the period of the approving, how to deal with new crime which is found after execution, how to improve the possibility of criminal proceedings penal action, the right of legal aid for defendant, and so on. From judicial level, this paper brings out outlook about how to construct legal-person's thinking mode, and the impact on the system from the macro-and micro-impact aspects. The paper proposes that legal-person's thinking mode should be constructed on legal concept of moderate catious penalty, on setting up a wide range of methods, on cultivate concept of supremacy of law, on good professionalism, and on legal intelligence. Beside some other basic criminal principles, this paper proposes to set up three judical principles for the entities and procedural fairness: the principle of the austerity of criminal law, the consistent with the purpose, and the principle of the legitimacy. This paper proposes to applicable standards of typical crimes, to improve the internal operation of the system of approved procedures, to set up judicial interpretation function, to improve the coping mechanisms of judicial conduct, and so as to deal with a balanced mechanism for strengthening the sentence.Part seven is on the conclusion. Based on the above discussion, the paper holds the control and careful application of the death penalty is a realistic goal of justice, the supreme judicial authority gained one of the significant outcomes is the figure of the death penalty with reprieve exceed the figure of the death penalty, so the goal of retaining the death penalty under the premise of controlling and careful application of the death penalty is made into reality basically. Therefore, the systematically research of this system accords the scientific concept of development and reality requirement, and shows a positive value. So it can be concluded that conditional reprieve of the death penalty system in our country is the path of judicial control of the core means and a realistic choice, so the system theoretical results are for judicial practice and better applications, the system is not only a reprieve moderate penalty, but also covering a large number of urgent study for the entities and procedural, such as philosophy Study, how to structure the rules of evidence and so on. Therefore, so many questions still need to solve in future exploration during research and practice.