Study On Procedure Of Judicial Review Of Death Sentence

Procedure of judicial review of death sentence, as a special procedure independent from the procedure of general trial, is the last procedural protective screen while China adopts death sentences cautiously.Scientific and rational procedure of judicial review of death sentences has three fuction: the protection of human rights,the correction of the misjudged and the constraint of the power.In ancient times, rulers of the country attached great importance to the review of death penalty cases, a series of system with the reference meaning such as"triple retrial","five times retrial"were appear.Since the founding of People's Republic of China, the development of the procedure of judicial review of death sentences embodied in the changes of the right to approve death sentences, it show as a repeated process that decentralize the rights -get back the rights– decentralize again–get back again. decentralization of rights to approve death sentences makes the procedure unable to play its function. October, 31, 2006, "on the amendments to 's decision" published by The National People's Congress Standing Committee provides that: "the death penalty should be submitted to the Supreme People's Court for approval except it is in accordance with the law by the Supreme People's Court judgement." This means that after several years of decentralization, the Supreme People's Court get back the rights to approve death sentences again. It has the vital significance to limit the application of death penalty strictly and unify the standard to suit death penalty which stand for the progress of judicial reform.But we must notice that only taking back the authority of reviewing death penalty would not solve the problem basically,. Although in recent years, the concerned organs including the supreme people's court, the supreme people's Procuratotate,the Ministry of Justice and the Public Security have made a series of regulations on the death penalty cases, but the current procedure of judicial review of death sentences still exist a lot of shortcomings and inadequacies such as the fashion of the starting of procedure is single, the fashion of the judgment is confidential;the trial organization and the principle of the court's activity is unreasonable;Main members such as the accused, the lawyer, the procuratorial authority are not participating in the procedure;and there isn't time limit in the procedure.To some extent,these shortcomings and inadequacies which were negative to realize the value of Procedural fairness and Entity fairness has affected the fairness in judgement and the protection of the defendant's human rights of the death penalty case. To avoid the procedure of judicial review of death sentence become a mere formality which will result in a waste of valuable judicial resources , we should reasonable re-build the procedure under the guide by the principle of limit the application of the death sentence; the principle of procedures involved and the principle of timely trial.so that we can realize three major function of the procedure of judicial review of death sentence. First of all, given the defendant a special right on the starting of procedure; then creat a fashion of the judgment that mainly in a way of"hearing trial" ,supplemented by the way of open trial;build a reasonable trial organizations;at the same time, make sure the main members participate in the procedure; determine the period of the procedure. Strive to transform the procedure of judicial review of death sentence into a trial procedure of independence, real litigation significance on the the basis of getting rid of the defects in the procedure .