Theoretic Introspection And System Reform Of Death Penalty

The death penalty, which leaves the womb in the primitive society custom humanity's most ancient penalty, after has experienced the time which was esteemed and abused, is going out people's line of sight gradually and vanishes quietly in many countries' statute book. Up to January 11, 2008, the whole world altogether had 135 countries already abolished the death penalty in the law and the practice. And in 62 countries that reserve death penalty, the death penalty is only limited to the most serious crimes. There must be some convincing reason behind the so fierce subversion and attitude changeover——the theory of death penalty abolishment. In the 18th Century, along with the dissemination of human rights theory and challenge to the death penalty from Beccaria, the thought of death penalty abolishment shaked the entire Europe continent. Then it revealed the world scope dispute of death penalty abolishment or reservation, which is long reach to 200 years. Quite remarkably, both sides can form respective theory system based on many same viewpoints through entirely different thinking mode and unexpectedly different proof way. In the article, the author selected five most controversial and the representative argument focal points, then objectively introduced the respective thinking mode and argument process of death penalty reservation theory and abolishment theory.In view of the fact that approval and support to the death penalty abolishment theory, in the second part of the article, the author has carried on the critique to the foundational viewpoint and the argument which supported to the death penalty reservation theory, then has proven own positions. Because the death penalty is long-standing, its behind support comes much from the let out of human most primitive emotion and the theory belief which can't be proved. Nowadays, when we use the rational judgment and the modern idea regards the death penalty, many questions are needed to weigh again or pay, enough attention to. In view of some viewpoints and argument from death penalty reservation supporters, the author criticized on one by one and explained own opinion in the second part of the article. First, along with human culture development and society's progress, eventually, people must go out the revenge the psychological haze. Rational attitude to retaliation is not only the need to development of humanity, but also the social progress inevitable result. After all, we haven't obtained any profit from the death penalty which comes from the wicked evil adding together. Second, to a large degree, the humanity has firm faith in the death penalty owning to its deterrent force superstition. No doubt, the death penalty has deterrent function equally to the other penalties, but this cannot easily obtain the conclusion which death penalty has the special deterrent force only because its degree is heavy. And, the real diagnosis inspection also proved that is not true. Moreover, the crime is a complex social problem, and it cannot only depend on the deterrent function of penalty to achieve the goal of controlling. Third, the life power to the high of human rights theory seems the death penalty gravedigger. Its birth and the dissemination vacillated the death penalties' center status in penalty system, and it provided the solid theory basis to the death penalty abolishment. Treasured to the life power has aroused international society's widespread interest and the response. International organization formulated the document to summon countries abolished or limit the death penalty in the greatest degree, and regional organization restrain the member nation's manner to death penalty through the internal document, also the countries respond positively in the law with the adjustment etc. All above caused the life power to obtain perfect safeguard in the legal, and made the reality possibility to the death penalty abolishment. Fourth, the fine law must reflect populace's will, but does not have to be ruler's text of a statement. But, how does the"public opinion"to be correct and smooth expressed? And how can it be really and accurately reflected to the law? This time, it seems that we ought to take"public opinion"as a kind of representative system populace wish. The selected public representative's opinion can not only reflect the real populace's call, but also more rational to the most basic unit public opinions. Regardless of the respect public opinion regarding by the death penalty reservation or the emphasis on the political leader's wise choice regarding by the death penalty abolishment, it is a better balanced method. Fifth, death penalty misjudgement which takes the life as price sufficiently causes us to ponder earnestly the death penalty existence value. The misjudgement can not only cause an innocent person to lose the noblest life and deprive him the opportunity to create value for the country and the society to realize his own value, but also seriously harm a national judicial authority. After all, it sufficiently destroys all rationalities of the defenses for death penalty.Although the author theoretically approves of the death penalty abolishment theory, but in view of the fact that our country's realistic condition, the death penalty abolishment can't be a hasty decision, therefore controlling the death penalty in maximum limit becomes the best choice in current. In the last part of the thesis, according to our real condition, recombining some related specific prescriptions of the international treaties and documents, the author carried on a contrast analysis on our country death penalty system and the international treaties to find the differences, and correspondingly proposed revision suggestions in the legislation and the judicial two big aspects. First, in the legislation, we must take some revision and consummation measures such as reducing death penalty kinds of crime scope, reducing death penalty crime charges, standardizing the object of death penalty, consummating legal help system, as well as establishing some new system such as complete significance illegal evidence discharges rule to standard specific prescription of death penalty system and strictly control death penalty. Next, because changing the legal regime consistent procedure of a country and realizing the manner transformation to reserve or abolish death penalty is not an easy thing, in addition starting the legislative power so expensively and the tedious procedure and so on the reasons, strict control in judicial is more feasible and effective. Full and expansive use of the postponed death sentence system which is only possessed by our country, rectification the manner of judicators, fulfilling the judicial idea which the doubtful crime is innocence, raising and improving the judge's individual quality and so on the measures are the most effective ones to control death penalty at present.