On Judicial Restriction Of Death Penalty

The issue of death penalty has been one of the most heated topicsin academic discussion. There have been three views concerning itspreservation vs. abolishment: one being of the view of preservation,another that of restriction, and the third that of abolishment.Theoretically, most scholars have come to the conclusion that deathpenalty should be reduced, i.e. restricting its application whiletemporarily preserving it, aiming ultimately at complete abolishmentof it but with gradual pace. This view of restriction and ultimateabolishment of death penalty, to which I am committed, has become incurrency. In my understanding, restriction of death penalty isconducted by none other means than those of legislation andjurisdiction. Among other things, judicial restriction is of morepractical significance. One reason is that legislation-based control ofdeath penalty, though operationally feasible, cannot achieve much,because of the complexity of legislation procedures, short implementperiod of the current criminal law, and lack of motives by legislationinstitution of revising current criminal laws. All these apart, there isno systematic discussion of legislation restriction of death penalty inacademic circles. Given this, this dissertation has some theoreticalsignificance and practical values.Based on previous researches, this dissertation focuses ondiscussing, from comparative and historical perspectives, the generaltheories of legislation restriction of death penalty, examiningworld-wide trends of death penalty, and analyzing the dilemma of the judicial practice of death penalty. It is assumed in this dissertation thatjudicial restriction of death penalty can be implemented boththeoretically and practically. Theoretically, the legislation institutionshould renovate life conception and relegate the connotation of the"severe strike" policy. This is also a crucial rout to judicial restrictionof death penalty. Practically, the judicial institution should, with liferights-oriented conception in mind, restrict judicial practices of deathpenalty through various concrete measures. With respect to crimes ofencroaching on non-life rights, the application of death penalty shouldbe largely reduced. With respect to crimes of encroaching on liferights, the execution of death penalty should be rigorously controlled.Specifically, procedurally rigorous control can prevent from wrongkill and random kill, and measures should be taken to make up forpotential negative effects ensuing from reducing and abolishing deathpenalty. Judicial explanation concerning death penalty should be madein line with the spirit of judicial restriction of death penalty. It isassumed, in this dissertation, that the practice of reducing theapplication of death penalty through judicial restriction will makedeath penalty a mere historical past in our country.