Limiting The Application Of Death Penalty In Judicial Practice

The existence of death penalty as a punishment in the system of criminal penalty of our country, is with certain rationality relatively, but is an irrational choice absolutely. Its relative rationality determines its necessity to exist for quite a long time; while its absolute irrationality determines that it must be abolished at last. Before it is abolished, the only rational choice is to take less death penalty and be cautious. Under the current Criminal Law, the court absolutely can largely limit the actual number of carrying out death penalty with current systems and regulations. Before legislators revise the current Criminal Law, we can achieve the aim of reducing death penalty by strictly limiting death penalty in judicial practice, and that is the significance of this article. The article can be put into five parts in all. Part 1: Prosecution and review and limiting the application of death penalty. First the article introduces the legislative evolution of charges of death penalty prosecution. In the Criminal Law of 1979, there were twenty-seven charges of death penalty in all, while in the Criminal Law of 1997, the charges had been added to sixty-eight. The criminal charges deserved death penalty can be widely found in all other nine chapters in regulations of Criminal Law except Chapter Nine----the charge of malfeasance. Then the article gives a detailed analysis to the relation between prosecution charges and limiting the application of death penalty. It argues that in judicial practice, strictly controlling the application of prosecution charges of non-violent criminal death penalty, and meanwhile adopting a prudent attitude to the application of prosecution charges of violent criminal death penalty, should be an effective approach to limit the application of death penalty in prosecution charges. Further, the article discusses the relation between prosecution charges and the first-instance judgment,using crime of intentional homicide and intentional injury as examples, it illustrates the influence of controlling death penalty charge to the first-instance judgment, and especially emphasizes that the differences between them should be carefully distinguished when review prosecution charges, meanwhile, this article holds that one important factor to affect object confirmed prosecution charges is the tendency of conviction according consequences in prosecution departments, so pay special attention to the influence to death penalty cases by the strong first impressions of judges in judicial practice, and prudence must be emphasized on confirming the death penalty charge. Part 2: The first-instance judgment of death penalty cases and limiting the application of death penalty. This part mainly discusses several leading aspects of limiting the application of death penalty in the first-instance procedure: First, beginning at death penalty policy, it introduces our death penalty policy of sentencing or executing death penalty less and carefully, and the death penalty legislation in Criminal Law of 1979 and of 1997. It emphasizes that judges must develop scientific penalty conception in trials, and persist in using the death penalty policy cautiously. Then it gives further analysis to limiting the application of death penalty from the application conditions of death penalty. The general provision to the application of death penalty in Criminal Law is that it shall only be applied to criminals who have committed extremely serious crimes. So the specific standards should be made according to the general provision. The provision of limiting the application objects of death penalty shows the humanism spirit in our Criminal Law. Next, the article discusses how to limit the application of death penalty in judicial practice from the aspect of proof investigation to death penalty cases, analyzes the contents and standards of proof investigation to death penalty cases, poses the managing standard of doubtful proof and points out that illegal proof should be treated carefully. Finally, the article puts forward its suggestions to improve the current system of judicial committee so that the judicial committee can bring its functions into full play on limiting the application of death penalty. Part 3: The second-instance judgment of death penalty cases and limiting the application of death penalty. First the article poses that all the appeal cases of death penalty should be held hearings to avoid the abuse of death penalty caused by judicial injustices. Then the article proposes that theprinciple of no additional punishment resulting from appeal should be carried out completely in the second-instance judgment of death penalty cases. The principle of no additional punishment resulting from appeal is an important principle in criminal procedure of our country. Limiting the application of death penalty in judicial practice mainly refers to emphasize the principle in the second-instance judicial procedure to the cases of death sentence with a two-year reprieve. It includes two comparatively projecting problems: court of second-instance shouldn't commute the death sentence with a two-year reprieve by court of first-instance to death sentence with immediate execution in flexible ways, and court of second-instance should commute cautiously to the protested cases of procuratorial organ. Part 4: The death penalty review procedure and limiting the application of death penalty. In this part, the article discusses its views mainly on exercising the right of death penalty review and the modes of death penalty review. As the right of death penalty review, first, the article holds that the Supreme Peoples'Court should take back the power of approving the death penalty. Many problems have been aroused in judicial practice of transferring the power of approving the death penalty to lower levels. Especially the combination of second-instance and death penalty review procedure has made the review procedure existing in name only. The withdrawal of the power of approving the death penalty can not only overcome those problems from the foundation, but also restrict and reduce the application of death penalty from procedure, thus it will be good for limiting the application of death penalty in judicial practice. Next, as the modes of death penalty review, the article holds that we should improve the current system of death penalty review, mainly from enhancing the defendant's right to defense in death penalty review procedure, and improve the modes of death penalty review from the aspects of changing the review or approval of death penalty cases from written form to conditioned "interviews"and clarifying the limitations of death penalty review procedure, so as to realize the aim of supervising death penalty judgments by death penalty review procedure. Part 5: The procedure of execution and limiting the application of death penalty. In this part, the article points out that, first, restrict the immediateexecution of death penalty by enlarging the application of death sentence with a two-year reprieve. Death sentence with a two-year reprieve is a particular legal system in China. In judicial practice, with the coordination of the Supreme Peoples'Court, the number of death penalty with immediate execution can be reduced to the least by the loose explanation to the application conditions of death sentence with a two-year reprieve. Then, pay attention to stopping death penalty with immediate execution in state of emergency to avoid sentencing or executing death penalty by error. Finally, the article poses its views on the establishment of the death penalty absolving system. It holds that although the death penalty absolving system hasn't been prescribed legally, its establishment is not only necessary but also feasible. The state should absolve certain criminals with death penalty according to certain conditions of the death penalty absolving system in order to reduce the application of death penalty.