| A Impact Factors on the Application of the Death Penalty are factors that have important influence on the selection of application way of the death penalty.The Impact Factors have normative factors and non-normative factor, explicit factors and tacit factors.Without any doubt, justice in sentencing is not only a concrete embodiment of justice but also a part of the important content of justice. Standardizing sentence has great practical significance in regulating judicial discretion, realizing the goal of the same case has the same sentence, and ensuring justice on sentencing. In order to achieve justice on sentencing and regulate judges’ discretion, the Supreme Court has published “ Notice on the implementation of the sentencing standardization” and “ Guidance on the common crimes’ sentencing”. However, the implementation of sentencing standardization has three aspects of limitations: Firstly, from the perspective of the charges, it only is limited to 15 types of charges including traffic accidence offence, intentional assault, rape, false imprisonment, robbery, theft, fraud and other offences. Therefore it does not cover all charges. Secondly, from the perspective of the types of penalty, it merely is limited to fixed-term imprisonment and detention. As a result, death penalty, probation, and pardon are excluded. Thirdly, from the perspective of normative elements, it is limited to 14 common dominant mitigating factors of sentencing. However, common recessive factors are ignored.For the application of death penalty, there are many problems, such as its content is complex, its reservation or abolition is in dispute, and the condition and standard of its application has not been established yet. Death penalty in our country is not death penalty in its true sense. It includes ‘life penalty’ as well. This means that there is still an issue on selecting the ways of the application of death penalty, although the accused is sentenced to death penalty. There are three ways of the application of death penalty, including death penalty immediately executed, suspended death penalty with limit commutation, and suspended death penalty with unlimited commutation. The application of death penalty is a matter about life and death and it must be treated with great caution. Therefore, it isappropriate, necessary and urgent to realize the standardization of the ways of the application of death penalty. This is conducive to further advance the standardization of sentencing, elevate judicial credibility, and promote fairness and justice. However, standardization currently is very new notion for both the application of death penalty and the application of the fixed-term imprisonment in judicial practice. What the standardization is and how to achieve standardization decide the life and death of the accused that is sentenced to death penalty. The harshness of death penalty and the strictness of laws are self-evident. It is easy to shout slogans of standardization alone or title something as standardization. However, it is really difficulty to achieve the standardization of the ways of the application of death penalty. If successful, it can avoid innocent accused from executing death penalty and achieve justice.Academic research shall be problem-oriented, effectively resolve deep-seated problems influencing justice to elevate the judicial credibility. Based on this consideration, this essay’s ideas on research are as follows: Firstly, for guiding ideology, this essay emphasizes the importance of practice. This essay regards the application of death penalty in trial practice as a starting point and treats the achievement of the standardization of the ways of the application of death penalty as the goal. Secondly, in terms of the research methods, the essay uses the dominant and recessive factors demonstrated in the process of selecting the types of death penalty application as a starting point. The essay sorts out all of those factors and perfects those factors that affects and decides the legality, rationality, and regularity of judges’ decision on selecting the application of death penalty to reform and abandon those illegal, random, and opportunistic factors. By doing so, the essay intends to realize the standardization of the ways of the application of death penalty. Thirdly, for research methods, the essay insists on the tradition that the theory and empirical research maintains uniform but mainly focus on empirical research. Meanwhile, the essay combines theoretical thinking and engineering thinking but mainly focus on engineering thinking. Moreover, this essay combines the “system – structure analysis” and “ process – events analysis” but mainly focus on the latter.The section one is the main basis of the application of death penalty. Firstly, from theperspective of criminally legal norms, according the articles 48 and 50 of ‘Criminal Law’, the death penalty in our country includes death penalty immediately executed, suspended death penalty with limit commutation, and suspended death penalty with unlimited commutation. The primary basis of the study on the standardization of the ways of the application of death penalty is criminally legal norms. It includes substantive norms, procedural norms and evidential norms. It also includes legislation, judicial interpretation and legal documents. All of those norms justify the ways of the application of death penalty, and they are precondition and foundation for achieving the standardization of the ways of the application of death penalty. Secondly, from the perspective of the policies of death penalty, the reason for death penalty in our nation includes life penalty and punishment against freedom is mainly because of the policy of “to kill less and cautiously”. The policy of death penalty plays a significant and irreplaceable role in selecting the ways of the application of death penalty. The policy can cause the legislature to reduce or increase laws on the charges of death penalty and the ways of the application of death penalty. The policy can also guide, affect and decide how a judge to select the ways of the application of death penalty. Therefore, it is important to correctly understand this policy to achieve the standardization. Thirdly, from the perspective of the functions of penalty, the establishment of the ways of the application of death penalty has functions of both retribution and prevention but mainly focus on the former. The selection of the ways of the application of death penalty is based on responsibility, and is justice-oriented. However, it should seek justice in accordance with the principle of compatibility of crime, responsibility and penalty.The section two is about the dominant factors in the application of death penalty. This essay is based on the empirical research on 1095 copies of death penalty verdict and interviews on 1342 offenders sentenced to death penalty. The essay studies these factors from three aspects and sorts out them:Firstly, seen from the subject factors in those cases such as the gender, age, occupation and roles of the offenders and victims, there is certain degree of regularity in the process of selecting the ways of the application of death penalty. Secondly, seen from elements of constituting death penalty cases, the most decisive and importantdominant factor in the process of selecting the ways of the application of death penalty is causes of crime, means of offending, and results of crime. Generally, those dominant factors decide the life and death of the offenders, limitations and without limitations on them. Meanwhile, the circumstances in selecting the ways of the application of death penalty have something in common. For example, if the offenders compensate the victims and the victims forgive the offenders, the court tends not to sentence death penalty immediately executed. Thirdly, from the perspective of trial level, the death penalty cases go through the first trial, the appeal, review procedures, dismissal and retrial, and commutation. The reasons without approval guides and affects the selecting of the ways of the application of death penalty. The essay sorts out, summary and explores the reasons and results of the dismissed cases, and the reasons of disapproved death penalty cases to research the dominant factors.The third section is the recessive factors in the application of death penalty. The recessive factors widely exist in various parts of the findings of fact and the application of law of death penalty cases. These factors have their own places in trial, and they can be seen from various ways, such as judicial precedents, logical reasoning, choices of facts, evidence admission, the application of experience, and the involvement of other powers. Based on 426 judges’ questionnaires, and interviews trying death penalty cases, this section analyses the recessive factors deciding and affecting the judges’ decisions on selecting the ways of the application of death penalty. Those factors objectively exist. Their existence is not affected by the fact that they are not written down in death penalty verdicts. According to these questionnaires and interviews, there are mainly four aspects for recessive factors: the first aspect is the differences between parties; the second aspect is the social structure, specially the influences from media attention and petition; the third aspect is the administration of trial, such as internal judicial performance evaluation, CRIC, consult reports, external investigation and others; the fourth aspect is the quality of evidence. The degree of the defect in evidence in death penalty cases and the degree of the acceptability to that evidence of the judges also provides space for the formation of “leeway” judgment.The fourth section is the rational thinking of issues arising from the application of deathpenalty. Based on the study of the second and third sections in this essay, it is found that there are many serious questions in selecting the ways of the application of death penalty that are main factors binding its standardization. Firstly, criminal legislation is too abstract to operate. Questions such as what “extremely serious offences” are and what “unnecessary to execute immediately” is are all left to the justice to judge and choose. It follows that the judges have discretion to decide the death of a criminal, which makes the standardization of selecting the ways of the application of death penalty increasingly difficult. Secondly, the elements of crime including cause of crime, criminal methods, and criminal results lacks normalization. The expressions, such as “ criminal methods are cruel”, “criminal methods are very cruel” and “criminal methods are extremely cruel”, are confusing. There are different standards for “criminal consequence is serious”, “criminal consequence is very serious”, and “criminal consequence is extremely serious”. The application of legal circumstances and discretional circumstances, “should” circumstances and “can” circumstances, responsible circumstances and preventive circumstances is in a mess. Thirdly, in the process of selecting the ways of the application of death penalty, the facts that judicial power operates with other powers together and the cases’ social structure interacts with the judges’ personal acknowledge make the standardization of selecting of ways of the application of death penalty difficult. These factors mutually influence and strengthen each other. The possessors of the powers use some of legal excuses such as leading, supervising, and guiding to wield influence. On the one hand, the clients and stakeholders through news media, letters and visits and others ways intend to use powers to satisfy their demands. On the other hand, various trial management factors, such as performance appraisals, case assessments and investigations, and public satisfaction rankings, like a sword hanging the head of judges. In order to be safe, judges have to cater to those power controllers’ likes.The fifth section is the perfection and thinking of the application of death penalty. This section is based on the legislative regulations, dominant factors, recessive factors and existing issues in selecting the ways of the application of death penalty to establish accordingly standardization model of selecting the ways of the application of death penalty. Firstly, thetheoretical sources of the standardization model of the application of death penalty come from the theory of social power, the theory of the referee model and the theory of social structure of cases. Secondly, the dominant factors of the standardization of selecting the ways of the application of penalty death include constructive factors of crime(i.e. cause of crime, criminal methods, and criminal results), and subjective factors of criminal cases(i.e criminals’ character, victims’ fault, the defendants’ compensation, and the victims’ forgiveness). This type of factors plays determinative role in judges’ selecting the ways of the application of death penalty. Thirdly, based on criminal results for 9 types of scenarios about the models of the application of death penalty being set up in the section 50 of the Criminal Law, the main types of selecting the ways of the application of death penalty include personal injury type and non-personal injury type. It follows that in death penalty cases, there are two models of the application of death penalty—that is, personal injury type of the application of death penalty and non-personal injury type of the application of death penalty. In terms of personal injury type of the application of death penalty, it includes simple model of personal injury type of the application of death penalty and complex model of personal injury type of the application of death penalty. The former mainly applies to death penalty cases where there are death, personal injuries and sexual assaults and others like murder, assault, and rape. The later also can be divided into single crime complex and several crimes complex. Simple crime complex is when the facts of infringing properties and depriving of the life coexist in a case, but the law only regards this as a crime such as arson, explosion, the crime of delivery dangerous substances, robbery, and kidnap. Several crimes complex is when the offenders committed several conducts involving personal injuries and property infringement, the law regards these conducts constitute several crimes. It is the complex of murder or assault with intent and another crime, such as the complex of murder and rape, murder and robbery, and murder and fraud. As for non-personal injury model of the application of death penalty, it mainly applies to death penalty cases where no personal injuries involve, such as supplying dangerous drug. By categorizing the models of the application of death penalty, refinement and standardization of death penalty discretion can be achieved. Fourthly, the regulation ofrecessive factors in applying death penalty includes cases’ social structure factors and trial management factors. Recessive factors and dominant factors are two faces of a coin. The cases’ social structure factors mainly refer to individual case’s social structure and group cases’ social structure. Trial management factors mainly refer to vertical management factors among different levels of courts and horizontal management factors between courts and party committee, and NPC. What judges think when they select the ways of the application of death penalty is relative recessive. Recessive factors make the discretion on death penalty more mysterious. Therefore, the realization of the standardization of recessive factors shall regard judges as core, establish various and different levels of firewalls around judges to prevent injustice factors from penetrating into the process of deciding death penalty. The first firewall is social information. It mainly prevents the judges from considering the social status of defendants and victims and social relations web behind them. The second firewall is the prevention of trail management factors. It has two dimensions including horizontal prevention and vertical prevention. Horizontal prevention mainly refers to prevent power intervention of local party committee and government, NPC and CPPC, and politics and law committee. This type of prevention mainly depends on these departments’ self-discipline and trial organs’ compressive resistance ability. The third firewall is to improve judges’ immunity especially in death penalty cases that the media concerns, and letters and visits factors involve. It is not only necessary to take risk assessment on cases, but to improve judges’ comprehensive quality.Justice is the lifeblood of the rule of law. Justice plays a significant role in leading social justice. Therefore injustice will cause serious damage on social justice. It follows that the administration of judicial system and the operating mechanism of the judicial power shall be improved. It is necessary to regulate the judicial conducts, and strengthen the supervision of the judicial activities. The nation shall do its best to make its people feel fairness and justice in each judicial case. |
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