The Practical And Ideal Analysis Of The System Of Death Penalty With A Reprieve

Death penalty is one of the most important penalties in criminal laws of our country,and it is also a hotspot issue in modern theories of criminal law around the world. Long time ago, people had no questions about its rationality and suitability of the existence of death penalty. Until 16 and 17 century, there were some scholars such as Thomas Moore and Beccaria, who attacked the existence of death penalty from sense and humanism and finally brought on a fight between"to be"or"not to be"in the following hundreds of years. Now, around the world, there are many countries or areas completely abolishing the death penalty. Even though such countries, which are not completely abolishing the deal penalty, also restrict or reduce the use of death penalty. So our country set up the system of reprieving death penalty to control the use of death penalty in conformity to the world trend in this area. This system not only provides some law evidence for criminal policies of less and careful punishment of court, but also meets people's psychology of punishing the murderers at a certain extent. However, in these years'justice practice, its idiographic use departs from its initial purpose because of mistakes on legislation. Therefore, we have to make up and reconstruct the deficiency of existent system purposely to make it exert its function on restricting the use of death penalty fully now at the base of affirming the inherent value of this system. This thesis will affirm its existent rationality, analyze its shortage and bring some efficient measures though the introduction of the historical evolution of death penalty with a reprieve.There are three sections in this thesis: The first section is for the expatiation of the basic concept of reprieving death penalty system. When we talk about the possibility of reprieving death penalty system, we have to clarify its concept first. We can see that in former days, the system of reprieving death penalty of our country was born from the policy against the enemy and evolved from the climax of cracking down the counterrevolution by explaining the historical transformation of death penalty reprieve in our country. The writer moves forward to clarify that how this system affect people's understanding about itself in the course of its development and indicate that reprieving death penalty system is neither a single penalty which is different from death penalty, nor a simple way of execution, but a special execution system of death penalty, after knowing the development skeleton of death penalty reprieve. And then the writer emphasizes on the functions of reprieving death penalty system, after determining its nature. This section shows that reprieving death penalty is better than execution immediately on general and special prevention from the aspects of criminal, society and victim. Just because it possesses the unreachable systematic value against immediate execution and makes up the deficiency of immediate execution on the function of penalty education, we have to reserve this system and develop it gradually to exert its maximum function on limiting death penalty since we can't abolish death penalty now.The second section is the analysis for today's death penalty reprieve system, which is mainly finding out the question. First are some suitable conditions of death penalty reprieve. That means it is applicable when the criminal, who should be sentenced to death but has not to be executed immediately. How to use death penalty properly becomes an issue that needs to be solved first since death penalty is the precondition of death penalty reprieve. The 48th item of the Criminal Law prescribes that one whose crime is too evil should be condemned death penalty. But there is not a clear standard about what is"too evil crime", so this brings on a great disparity of death sentence in justice practice."Shouldn't be executed immediately"but how to grasp this? These questions are related to whether a criminal has a chance to be rescued from death and start with a clean slate. In the course of justice practice, there still limited amount of death penalty are reprieved, but a lot are executed immediately because of no one same understanding on these two standards. Stay of execution becomes an excuse for judge who make mistakes on use of death penalty because some criminals who should be sentenced to reprieve can't get a chance to repent, but some of criminals who should be sentenced to life imprisonment get death penalty reprieve. Next matter is changing other punishments when testing time of death penalty reprieve is over. It mainly contains three aspects. First, the 50th item of the Criminal Law only emphasizes on commutation of no intent crime and making great contributions to cracking a criminal case or commutation of no intent crime and no contributions. But the situation between these two conditions, which is no intent crime and having certain contribution, is not regulated; Second, this regulation doesn't make a clear prescript on having great contribution and having intent crime during the time of death penalty reprieve; Third, at the testing time of death penalty reprieve, when the main content of legal execution comes out, the law doesn't make a clear regulation or any lawmaking and judicatory explanation on whether do they need to wait to execute until two–year time is over.The third section is for the perfection of death penalty reprieve system. In this section, the writer analyzes and brings some corresponding perfect projects for the issues mentioned above. For the understanding of the conditions on how to use death penalty reprieve, the writer puts forward that we should grasp it from two aspects. The first is from content, which is subjective badness and objective harm; the second is from degree. The writer prefers to adopt a comparative way to judge whether the crime behavior reaches the highest degree. It shows that we could convert our thoughts for the condition of"not have to execute immediately"to the condition of"excluding have to execute immediately". That means we can know when we should use death penalty reprieve by judging whether it arrives at an extreme and most harmful degree. Though the analysis of all the conditions happened in death penalty reprieve, the writer believes that we should make sure the following points: first is we should take the contribution of criminal into consideration during his testing time. When two-year testing is over, then we reduce his punishment to a higher set term of imprisonment in the extent of legal punishment; second is when criminal do have intent crime during the testing time, the people's highest court have the right to decide whether change the execution or not. Furthermore, the time of approving the execution should be later than checking the fact, but should not be restricted by the two years testing period; third is the punishment can be commuted to life imprisonment or above 15 years and below 20 years'set term of imprisonment, if the criminal had an intent crime but do a great contribution and this behavior is really true after the highest people's court approves.