Disscusion On The Restrictive Application Of Capital Sentence

Capital sentences have universially been the oldest and severest punishment all over the world from the ancient times. Historically, the system of death penalty has come through a process of the establishment, the improvement and the decay, in which it goes from the abuse to strict use, from the harshness to the lessened. More than 240 years ago, On Crimes and Punishments,which was written by Beccaria, the well-known Italian jurist, sparkled the debate whether the penalty should be ordained or not. Until now, the issue has always been the focus of the law professions and society. China is one of the few countries keeping the practice, and there are many controversies about its understanding and acknowledge in theory and practical application.However, after long study and discussion, a comprimise has been reached that the abolishment of the death penalty has been globally prevailing, and China should and must adopt the same practice, while taking Chinese reality into consideration, for it is not only a legal question, or primarily not, but also closely related to many elements such as history, culture and politics, etc. Therefore, the simple method of the complete abolishment of the death penalty is not practical. It should be done gradually.In this thesis, the article holds somewhat a middle way, that is, definite abolishment in future but real existence at present. Precisely speaking, it indicates that we should make strict provision of capital sentence although we temporarily keep it and slowly and gradually get rid of it. As to defining it legislatively and judicially, it points out that today we should focus on the values of efficiency and impartiality of criminal punishment. The reasonable and practical choice should be that legislative stipulations come together with judicial restrictions.The article includes six chapters. The first chapter, after comprehensively evaluating the debates, deals with their influences on our legislation of capital sentence. The second states as we are making restrictive application of death penalty now, the enactments should limit its usage, putting criminals' right to life at the first place when having thought about our valid law as well as national and international criteria. The third analyzes the reasonableness and real situation in China as well as other elements, says that it is reasonable to shape its adoptation if any values about it cann't be totally reasonable. The fourth and fifth put forth some specific tactics with regard to Chinese legislative and judicial limitations.Finally, the sixth addresses the assumption of the three-period reform plan: the period of the restrictive application, the interim period of the abolishment, and the real period of the abolishment, which is substantiated in great details from all aspects of politics, economy, human rights and the interity of law, etc.,with the suggestions of specific measures and tactics. To be conformable to the development of the society, we need to perfect our death penalty system when the law is made. Through strictly confining the death penalty in a certain range, reducing death penalty and effectively controlling it in judicial practice, we can make a sound foundation for the reform of death penalty, hence a drive for gradual abolishment of death penalty in China.