The Research On The Method Of The Judgment Procedure For Second Instance Of Cases Involvigng Death Penalty

The judgment procedure for death penalty should be extremely strict and judicious, since it is a case involving human life.(it matters human life) Second instance for death penalty cases, as an example to execute Criminal Procedural Law, important action to achieve Second Five-year Reform of People's Court, is a necessary path to perfect judgment procedure of cases involving death penalty and ensure the judgment result. It beneficial to enhance human-right guarantee in criminal justice and ensure the fairness and discretion of death penalty judgment in system level. Provisions on Some Issues concerning the Court Trail Procedures for the Second Instance of the Cases Involving Death Penalty (for Trail Implementation) (Hereafter referred to as Provisions) specifically stated some issues on implementation of second instance of the case involving death penalty. During the practice of criminal justice, it is impossible to thoroughly carry out the task of Provisions under power of office lawsuit mode. The reason lies on not only backward element of lawsuit conception, but also demand of reform of criminal judicial system in depth. Law-making itself is too careless and sample, it leads to the result that relevant problem can not been solved. As a result, second instance for cases involving death penalty can just be an announcement, many regulations of whom can not be put into practice. Regariding this issue, the author made a conclusion on the judgment procedure for second instance of cases involving death penalty, after researching on related documents and existed achievement. This thesis includes three parts.In Part1, the author analyzed the background of judgment procedure for second instance of cases involving death penalty and status quo of law-making. Judgment for cases involving death penalty without second instance can not ensure the accuracy of the judgment, the fairness of criminal dustice as well. With the reality that the supreme people's court of the People's Republic of China has retrieved the review right of death sentence, second instance plays an important role. Series of law-making procedure proved that second instance of cases involving death penalty has gained lots of attention. The author comprehensively understood the main idea of Provisions to thoroughly analysis the second instance of cases involving death penalty in China with the knowledge of the latest law. In part 2, the author analyzed the problem during the practice of law-making and lawsuit about judgment procedure for second instance of cases involving death penalty. The key point for second instance of cases involving death penalty is how to ensure its actual effect. There are three elements, which influence the effectiveness of second instance of cases involving death penalty. First, it is hard to change judgment during second instance because we use the written file center for court trail, during second instance, to read the written file as the judgment method influences a lot. Second, it is hard for the defendant to give full play as a main part, since lawyer can not achieve his/her effective justification. Third, it is hard to ensure the effectiveness of court trail because the probability for witness and judge to appear in court is low. Completed supporting system, such as juridical reason system, discussion & vote system and afterwards relief program, is indispensable when second instance of cases involving death penalty plays as a mistake corrector. However, the existing judgment system and lawsuit mode lack of the supporting system. Accordingly, our current Criminal Procedural Law and other relevant law have no word to specifically state some theoretic problem, such as which role the prosecutor's office should play to support civil lawsuit on the court, how to coordinate the relationship between judgment by whole and judgment on key point, how to collocate responsibility of quotation. It leads to the difficulty to put second instance of cases involving death penalty into effective practice.In part 3, the author scientifically analyzed the method of the judgment procedure for second instance of cases involving death penalty. Under the principle of solving practical problem, the author brought forward method and idea accordingly to meet the target of reforming the judgment procedure for second instance of cases involving death penalty in China by one more step. In order to ensure the effectiveness of court trai, the author suggested abolishing written file center mode, setting up the system to ensure lawyer's effective justification, building the institution about appearance of key witnesses, thus the court trail will be put into practical, not just a written words. In the respect of supporting system, which plays an important role to ensure the effective judgment of second instance of cases involving death penalty, the author suggested setting up precious juridical reason system, scientific discussion & vote system, strict supervision system for relief program. In the end,the author analyzed the problem concretely and straightened out the relationship, the thesis states the positioning of presecutor's office, relationship between judgment on whole and judgment on key points, how to quote on court. The prosecutor's office should play two roles, state prosecutor and law supurvisor, for the cases of appealing by the defendant; play as the law supurvisor if the prsecurot's office protests. In view of the particularity of the cases involving death penalty, we should combine the the method of judgment on whole and on key point, that's to say, under the background of judgment on whole, emphasizing the judgment on appealing and protesting reason. Regarding the quotation of second instance of cases involving death penalty, the existing evidence from the first trail and the new evidence from second instance should be discussed under three different circustance. To set up a completed system, which can put the second instance of cases involving death penalty in China into a smooth lawsuit mode, put the Provisions into practice, ensure the fair of cases involving death penalty and finally achieve the right of criminal, the author analyzed the problem raised up in different aspects, with the courage to be beyond the existing systems.