On Improving The Procedure For Review Of Death Sentences

From January 1, 2007, the Supreme People's Court has taken back some power of examination and approval to capital cases, which have been exercised by the higher People's Court before, and it is thought as an important achievement gained by the judicial innovation. After that, the Court made some consequential amendments to realize the smooth transition. Therefore, the current provision for the procedure for revision of death sentence still has some shortcomings that will make it not function well. If the problems are ignored, not only the justice cannot be realized, but the possibilities of cases in which the charges were false or which were unjustly or incorrectly dealt with will increase. So, the research on how to improve the procedure is meaningful both to the theories research and judicial practices.This essay makes analysis from the following four aspects: the current situation of the procedure and necessaries of making improvements, the basic conceptions of the procedure, the existing shortcomings and ideas of improving.Chapter 1 deals with the first aspect, divided into two parts concerning the current situation of the procedure and necessaries of making improvements. Chapter 2 discusses several basic theoretic conceptions from the procedure's nature, aims, and values of justice and efficiency. The nature of the procedure should be a court proceeding. The aims of the procedure should be oriented to protect human rights more than punish the criminals and in this essay, the system is reconstructed on preventing mistaken punishments, the minimum requirement of protecting human rights. On the basis of analyzing the relationship between justice and efficiency, this essay puts forward the idea that to improve the procedure, the wrong tendencies of laying more emphasis on efficiency and substance, less on justice and procedure in the legislation and judicature should be corrected to achieve the rational balance between justice and efficiency.Chapter 3 examines the existing shortcomings of the current procedure. It consists of five parts. The first part is about the ways of revising capital cases. When the Court is exercising unilateral secret reexamination, it is difficult for the defense and the prosecution to engage, so it is not good for discovering the true facts and protecting the basic rights of the accused. And it is also difficult for the Procuratorate to supervise the good function of the procedure. The second part is on the issue of the new sentence method adopted after the power transition. Except the limited cases which involved more than one lawbreaker and cases in which one committed several crimes, the Court can just remand the case for retrial but not change the sentences if the death penalty is disagreed. The result of this is to make the procedure have no end, harmful to the value of efficiency and the Court's function of direction to the lower courts. The third part analyzes the problems in the retrial remand. First, the Court intends to prompt the lower courts to take its suggestions not to sentence the death penalty. This violates the rule of independent trial power and harmful to the construction of the legislative orders. Second, the sentences of remanded retrial can be directly changed without holding a court, and this is not good for making the sentences justified. The fourth part explores the issue of evidence in capital cases. The main cause to make the cases in which the charges were false or which were unjustly or incorrectly dealt with appear is the unscientific rules of evidences and mistaken behaviors of using evidence, and the most evident problem is that the unlawful evidence cannot be excluded and the proving criteria are hard to catch. The last part is to talk about the malpractice of no time limit to the revision. It goes against protecting the rights of the accused, realizing the precautionary functions of the national rights of penalty, and it is also a hotbed for the judicial corruption.Chapter 4 is to prompt the ideas of perfecting the procedure. It concerns with the startup of the procedure, the ways of revision, the sentence rights after revision and the time limit. In the first part, this essay puts forward that the procedure should be started by the lower courts' initiative application, but not, as the ideas of many scholars hold, by the defense and the prosecution or by an imposed appeal procedure. The rule of judicial passiveness is to prevent the misuse of the judicial rights and to protect the citizen's rights, and it is also the presupposition of making the judges neutral and justified. The revision procedure is for the Supreme to examine the sentenced capital cases, and it will not make harm to the citizen's freedom and rights but demonstrate the self-limited judicial rights and suitable to China's current legislative circumstance. Beside that, the Supreme is not to initiate a new legal proceeding as an accuser but to make its own judgment objectively from the facts, laws and procedures, so it is not restricted by the sentences of lower courts and will not do harm to the neutral position of the court in the proceedings. The second part is about the ideas to improve and perfect the ways of revising. An objective way of reform is to combine the examination of written materials a court hearing under the current situation, and when conditions permitting, it should be transferred gradually to the totally appealized revision. The focus of this part is to construct the combined way under the limited conditions, which will involve both the defense and the prosecution. To be specific, the following three kinds of cases, except some according to laws, should have an open court hearing: the cases in which the main evidences are greatly disputed, the cases in which the oral evidences are possibly gained in an illegal way, the other cases in which the Full Court thought so. The open court hearing should be hold in the place where the accused is detained and by the Full Court from the Supreme which undertake the task of revision. Except the above cases, other cases can just revised by examining the written materials, but the Supreme Court must bring up the accused for trial and consult to the Supreme People's Procuratorate suggestions. The Procuratorate must read the written materials and put forward suggestions. And it also has the right to put forward advices of correcting if there are illegal ways found during the revision, and the Court should check and reply. As to the interrogation of the accused, the technology of distance video can be used to increase the efficiency. The third part concerns with the issue of the revision sentences. The first issue is about the evidences, mainly about the criteria of proving and rules of eliminating illegal evidences. As to the issue of proving criteria, a system of "clear facts, abundant proofs and excluded reasonable doubts" should be set up. As to the exclusion of illegal evidence, the following aspects should be taken into consideration: the illegal oral evidences should be excluded; the exclusion of illegal physical evidences can be decided by the judge; the defense can just prove that it is possible the confession was extracted by torture, and the prosecution must prove the legality of the confession. If the prosecution can not do that, the oral evidences should be excluded; there should be sound recording and video recording of the process of interrogating the suspected or the accused; the detention houses should be subordinated to the local judicial administrative office. The second issue is about the improving the revision sentences, mainly about the Court's rights of change the sentences in the procedure, as to the following five situations: to the cases the first judgment thought the fact is clear, the applying law is correct, the punishment is adapt, and the procedure of lawsuit is legal, the death penalty will be approved; to the cases the first judgment thought the fact is unclear, the evidence is not abundant, so the accused can not be sentenced guilty, the innocent should be announced; to the cases in which the criminal facts is clear but the evidences for measuring the penalty is not clear and abundant, a light sentence should be given; as to cases in which the original court violated the legal procedure and may influence the justified judgment, the trial should be remanded to the original court; to the cases in which new main evidence were discovered during the revision, it also should be remanded to the original court. To the remanded trail, the court should reorganize the full court to have a court hearing. The fourth part of this chapter, also the last part of this essay, is about the enactment of a time limit. The Supreme Court should give the sentence within six months form the day on which the case arrive at. And the limit can be expanded three months more after the discussion of the judicial committee if the case can not be ended because of some special situations.