The Study Of Judicial Restriction On Death Penalty

The restriction and reduction of death penalty has become the tendency ofinternational society. How to reduce death penalty has always been an important legalquestion that the theoretical circle of the criminal jurisprudence and the judicialpractice circle thought to solve in China which has special national conditions. Amongthe crimes that are charged by capital punishment, the abrogation of the crime ofintentional homicide is the most difficult one. Yet, we cannot abuse it. The abrogationof death penalty should begin with the restriction of it. As the abrogation of the crimeof intentional homicide is the difficult point of the abrogation of death penalty, therestriction on the crime of intentional homicide will be the heart to the matter. With theapplication of death penalty in the crime of intentional homicide being restricted, therestriction of death penalty will be solved. Therefore, it is of great significance toresearch the restriction on the crime of intentional homicide which decides thedeveloping direction of death penalty.In legislation, the statutory sentence of the crime of intentional homicide isunscientific and the applicable standard of death penalty is obscure. Judicially, theapplication of death penalty which concentrate on the crime of intentional homicide isarbitrary. Hence, the restriction should not simply focus on the number of deathpenalty which will lead to unchecked status. Since it is based on the penalty value todecide the application and inapplicability of death penalty, the judicial restriction ondeath penalty of the crime of intentional homicide should be studied in terms ofpenalty axiology to make sure the application of death penalty fits the value of deathpenalty. Under the realistic choice of reservation and restriction of death penalty, thevalue orientation of the application of death penalty is that it should be limited to the range of justice and utility value of penalty.According to the justice value, only the most severe crime of intentional homicideapplies to death penalty; according to the utility value, only when the specialprecaution is needed in crime of intentional homicide can the utility value realize. Theconnotation of justice value is equality, so the the evaluation of the severity the crimeof intentional homicide should be explored from the equal relation between “deathpenalty” and “the crime of intentional homicide”. Death penalty is the national rationalact to deprive of the life of the people who should take the responsibility of capitalcrime, and the key elements are ration, the responsibility the criminal takes, and theresult of death. So, the define of the most severe crime of intentional homicide shouldbe the intent degree, the aggrieved person’s fault, and the harmful consequences. Thespecial precaution factors of evaluation which have impact on the application of deathpenalty should be explored from the constitute elements of intentional homicidal act asthe special precaution of the crime of intentional homicide is primarily to prevent thecriminal from intentional homicidal act again. The crime of intentional homicide is thecriminal’s act to deprive of others’ lives and there are three elements which are thecriminal, the thought of killing people, and the death result. Thus, the evaluationfactors of the special precaution of the application of death penalty on the crime ofintentional homicide are criminal’s usual performance, attitude toward admission ofguilt and act to mitigate damage.The define of the most severe crime of intentional homicide are the intent degree,the aggrieved person’s fault, and the harmful consequences. The key elements of deathpenalty are ration, the responsibility the criminal takes, and the result of death. Theindirect intentional homicide is not applied to immediate execution of death penaltyaccording to the equity required by the justice value, so as the situations that thecriminal kill people in passion which is stimulated by the outside world withoutpremeditation, that the aggrieved person’s fault is obvious, and that the victim is notdead. When the aggrieved person’s fault is not significant enough to influence theimmediate execution of death penalty, the fault should be considered as the circumstance to weaken the immediate execution and it can be treated as the base forlenient sentence with other lenient circumstances occurred in a case. In a word, in theperspective of penalty’s justice value, death penalty can only be applied to the directintentional homicidal act with premeditation that leads to the victims’ death whosefault is not significant.The evaluation factors of the special precaution of the application of death penaltyon the crime of intentional homicide are criminal’s usual performance, attitude towardadmission of guilt and act to mitigate damage. The three key elements of intentionalhomicide are the criminal, the thought of killing people, and the death result. For thecriminal’s usual performance, death penalty is considered when the criminal recordsare violent crimes such as murder and mayhem according to the special precaution ofutility value. The criminal record of involuntary homicide is not appropriate to be usedas the base of the application of death penalty in position of the restriction on deathpenalty. For the attitude toward admission of guilt, it may not be sentenced toimmediate execution when the criminal confesses his/her guilt honestly. For the act tomitigate damage, the act to help the victim after the crime actively can be used as thecircumstance of sentencing for restriction on death penalty and if the helping act is notthat active, it can not be used as the circumstance of sentencing alone while it can beused as the element to weaken the immediate execution and plays the orle of restrictingdeath penalty with other lenient circumstances. With active compensation, sincereregret, and forgiveness received from the victim’s party, the immediate execution is notappropriate. In short, in the perspective of penalty’s utility value, only when thecriminal of the intentional homicide has a criminal record of violent crime, refuse toconfess his/her guilt and do nothing to mitigate the damage can death penalty beconsidered to be applied.According to the principle of priority of justice value and complementary ofutility value, death penalty can only be applied to the most severe crime of intentionalhomicide and this is the requirement of the principle of “restrict the penalty upper limitby the severity of crimes”. When the criminal has the intend to turn good death penalty cannot be applied which embodies the principle of “alleviating penalty intensity by thedemand for crime prevention”. In conclusion, the application of death penaltycriterion is that death penalty is applied to the act of direct premeditated intentionalhomicide which leads to victims’s death who have no significant fault, but the deathpenalty can be considered not to be applied when the criminal has no violent crimerecord, confesses his/her guilt honestly, and takes act to mitigate damage actively.