Study On The Standard Of Death Penalty Discretion

The Death Penalty is really harsh,Therefore,its standard is especially important.If the standard is wrong,the consequences are extremely serious!The standard of death penalty discretion becomes more and more necessary with the gradual improvement of the system of reprieve with Chinese characteristics.The construction of this standard not merely represents whether the death penalty applies,whether the death penalty should be carried out immediately,whether the reprieve is strictly limited,it also reflect human nature and science that the judge exert his or her subjective activeness dealing with death penalty cases properly.It is of important significance for limiting the application of the death penalty,reducing the number of executions immediately,realizing penalty function of punishment,education,appeasement and relief as well as building harmonious society.To my point of view,The different understandings of “The crime is extremely serious”,“Not neccessary immediate execution”,“Death sentence with reprieve is limited to commutation of sentence”and “Life imprisonment without parole” in academia and the judiciary attribute to the obscure cognition of the identification of the criminal's subjective responsibility.This paper introduces the personality responsibility theory into the death penalty discretion,the sentencing basis is social harmfulness(the responsibility of conduct)and anti-sociality(the responsibility of personality formation).We take this as the main line to develop the discussion of each specific standard of the death penalty discretion,as shown below..First,on the basis of expounding the content and value of death penalty discretion standard,this paper analyzes the current situation of legislation and judicature of death penalty discretion in China and the development trend of "killing less and killing more cautiously".This paper points out the root cause of the confusion in the application of sentencing circumstances,and points out that the key to distinguish the standards of death penalty discretion at all levels lies in the functional division,identification and comprehensive evaluation of subjective responsibility circumstances.Secondly,it summarizes and critically analyzes "the crime is extremely serious","death penalty should be imposed" and "death penalty must not be executed immediately".that the academic circle and judicial practice generally understand and identify.Compare and analyze the related concepts belonging to the subjective category,and distinguish the various discretionary plots applicable to the different functions of behavior responsibility and actor responsibility.Thirdly,this chapter introduces the personality factor of the unity of stability and variability.In referring to the practice of incorporating personality factors into the investigation of sentencing system in foreign countries,it is necessary to emphasize the comprehensive governance of the state and the society,conduct a new understanding of the principle of the adaptability of culpability and punishment through the theory of personality responsibility,and determine the culpability that the defendant should bear in the organic unity of behavior responsibility and actor responsibility.Fourthly,the social harmfulness of the behavior is extremely serious,which is the basic standard of applying death penalty.In evaluating whether the subjective fault of a criminal suspect is extremely serious when he commits a crime,we should not only identify the intentional psychological fact,but also make normative value judgment on the plot related to emotional fault and criminal motive.Only in this way can we strictly grasp the first barrier of death penalty discretion.Finally,the anti-social extreme of the actor is the regulation standard of the specific discretion of the death penalty.We should give the defendant an opportunity to repent and reform in a civilized environment,decide to sentence him to death with a reprieve according to his benign transformation of personality,and decide whether to limit commutation or life imprisonment according to the need and the difficulty of his transformation of anti-social personality.