| Capital punishment is one of the oldest punishments in the history of criminal law in the world. It is also called life punishment or the ultimate punishment, which is a means of depriving the life of the criminal by the authority in the name of the country. As for maintaining the order of the rule and protecting the security of the society, capital punishment embodies its value. Due to the seriousness and deterrence of capital punishment, capital punishment is regarded as one of tools of solidifying the regime by the rulers in history. With the development of the society, progress of the mind as well as the promotion of the cultivation, capital punishment experienced the evolution process from the abuse to using cautiously, from seriousness to lightening. At present, people respect the human right and propose the civilization. In some countries, capital punishment has said goodbye. However, China is one of the countries who keep the capital punishment. With the widespread of the concept of human right and the continuous condemn to capital punishment, Chinese scholars have thought deeply about capital punishment. The author comes up with his own view on how to recognize and comprehend the present situation of capital punishment in China as well as how to correctly master the development trend of capital punishment in China. This thesis is divided into three parts.The first part is the generalization of capital punishment in China. In this chapter, the author mainly discusses the change of capital punishment policy after the founding of China, the evolutionary process of legislation of capital punishment as well as the restriction of legislation of capital punishment and states the argumentation of leaders of China on capital punishment issue, which have the practical meaning in understanding the capital punishment policy. The change of capital punishment policy after founding of China is mastered from the capital punishment thought of Mao Zedong as well as that of Deng Xiaoping. The thought of Mao Zedong about capital punishment is concluded as killing less and cautiously. Killing less means keeping capital punishment and killing cautiously means restricting capital punishment. Under the guidance of the thought of Mao Zedong, we set up the policy of keeping capital punishment but restricting capital punishment. The statement of capital punishment of Deng Xiaoping involves capital punishment debate, capital punishment value and the application of capital punishment, which is the leading thought of capital punishment policy in China. There are three development stages of capital evolutionary of punishment legislation: the first one is criminal law in 1979, which is lack of prudence for the attitude to capital punishment since the limitation to the application of capital punishment has a large scale but loose degree; the legislation thought that the punishment is too heavy which is inclined to be capital punishment appeared; the second one is capital punishment legislation exploded after the early 80s and before the establishment of criminal law in 1997. The application scale of capital punishment enlarged and restriction on the procedure of using capital punishment greatly weakened; the third one is the modification of the criminal law in 1997 which was cautious of the issue of capital punishment, restricting capital punishment greatly. From the evolutionary progress of capital punishment legislation, it can be seen that development track of our capital punishment legislation is restricting a little--exploding greatly--weakening. The restriction for capital punishment legislation at present embodies in the choice of restricting capital punishment while setting the capital punishment legislation in 1997: the first one is that capital punishment exists as the legal criminal punishment; the second one is to restrict the trial subjects and checking procedure of capital punishment; the third one is to restrict the application conditions of capital punishment; the fourth one is to broaden the conditions for death probation reducing to life sentence and imprisonment; the fifth one is that capital punishment can not be applied in the crime with certain plots.The second part covers the thought of capital punishment debate in China. This part is the main body of the thesis. In this part, the author proposes that now China can not abolish capital punishment by analyzing the value of capital punishment debate from the discussion of capital punishment debate as well as the background of keeping capital punishment in China.The first section analyzes the value of capital punishment debate. The first point is the humanity of capital punishment. The analysis on the humanity of capital punishment aims to solve the focus issue that whether capital punishment conforms to the regulation of humanity in criminal law, that is, whether the right deprived by capital punishment is the basic right of human beings; the second one is the efficiency of capital punishment. The discussion on efficiency of capital punishment covers the function, value and economic issue of capital punishment. The function of capital punishment refers to that the function of capital punishment surpasses the side effects of capital punishment. Its positive effects exceeds it negative ones. The value of capital punishment refers to that the benefit of capital punishment must exceed its price, that is, the right protected by capital punishment should exceed its value it deprived. The economic issue of capital punishment refers to that difference between the benefit and cost must exceed that of freedom punishment and compared with freedom punishment, expense must be less than profit; the third is the justice of capital punishment. The justice of capital punishment is judged through the fact that whether the benefit of criminal deprived by capital punishment equals with that the criminal violated, that is, whether they are equal in quality and quantity. If they are equal, there is justice; if they are not equal, there is not justice in capital punishment. The second section is the analysis of argumentation of capital punishment debate. The basic making point of abolishment of capital punishment includes the following: the first point is that capital punishment violates the social agreement from legal view; the second point is that capital punishment is a cruel punishment from humanity; the third one is that the non-necessity for specific case from the prevention view; the fourth one is that it is difficult to correct in the condition of wrong judgment from function of criminal punishment. The making point of reservation of capital punishment covers the following: the first point is that capital punishment does not violate the social agreement from legal view; the second point is the respect for the life value from humanity; the third one is its deterrence function from prevention view; the fourth one is that abolishment of capital punishment does not conform to the Chinese state from the practical view.The analysis on background of reservation of capital punishment in China is listed. This section illustrates the four factors for not abolishing the capital punishment in China: the first one the economic basis; the second one is the political basis of capital punishment; the third one is the cultural basis of capital punishment; the fourth one is the social reality basis.The third part covers the assumption of rational development. Capital punishment is the practical choice of China.Restricting the capital punishment is the practical choice of China. The first one is that restricting it is reasonable, embodying the benefit as well as the justice as the humanity of criminal law.The second one is that restricting capital punishment is practical. The legal thought in ancient China as well as policy of Communist party demands to restrict capital punishment. With the deep research on capital punishment by the scholars of China, the shortcomings of capital punishment has been recognized by more and more people, which will calls for the rational consciousness. The international environment will further restrict the capital punishment.This section discusses the path of restricting capital punishment. The restriction on capital punishment is discussed from the judicial policy, legislation as well as judicial level. China should restrict the capital punishment in necessary limitation to lay the foundation of abolishment of capital punishment. The criminal policy restriction refers to that setting up the leading thought of killing less and cautiously as well as restricting capital punishment policy; the legislative restriction mainly restricts the application scale from legislation, the basis of restriction of capital punishment; the judicial restriction of refers to the strict restriction on judgment and enforcement of capital punishment.
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