On The Restriction Of Death Penalty

Death penalty is also called life penalty, which is the penalty depriving the life of the criminal. Since it is one of the most serious penalties in the penalty system, it is also called Great Penalty. Death penalty is one that has the longest history applied in human society until now. China has been a country full of death penalty. Criminal Law modified in 1997 embodied the restriction idea on death penalty, but it still kept 68 death penalties. In judicial practice, death penalty has also attracted the attention of the judicial officials. However, this is not consistent with the increasing abortion of death penalty in the world. This makes it necessary for us to discuss the restriction of death penalty.Abolishing death penalty has become the focus issue for the human right movement as well as criminal penalty reform. However, abolishment of death penalty is a long process undergoing in the social and historical background of a country. It can not be achieved at once. There is no condition in China to abolish this penalty. However, through investigating the death penalty system of China, it is necessary to reform death penalty system from legislation and justice. Viewing from legislation, death penalty takes up nearly 1/6 of the total penalty. Terms of death penalty almost takes up 15% of the terms of criminal law, which makes China become the country with the most absolute amount of death penalty. Kinds of death penalty are various with large scale of application of death penalty; the regulations of the absolute lawful death penalty are not proper; the regulations of applicable conditions for death penalty in criminal law are not balanced and unified; the range of measurement of penalty regulated in criminal law is too large, which will result in the random of enforcement of law; there are many subjects applied with death penalty; the excuse system of death penalty is not defined. Viewing from judicature, idea of heavy penalty widely spreads, contradicting with the death penalty policy of kill less and prudently; the appliance standard of death penalty is not consistent in economic crime; popular opinion has great impact on death penalty; the checking procedure of death penalty can not keep justice. Therefore, we need to reform the legislation and judicature of death penalty of China.Central committee proposes the goal of building the socialism harmonious society. Insisting in ruling the country by the law and ensuring the human right is the essential condition of building harmonious society. It conforms to the development trend and it also beneficial for developing the judicial corporation. We can restrict the death penalty from legislation as well as judicature.At present, the scale of death penalty in criminal law is too large with wide use, not conforming to the legislation trend of death penalty development of the international society. Therefore, it is necessary to adjust it in legislation and control the death penalty strictly. Viewing the criminal law structure, death penalty is too heavy and the other living punishment is too light in criminal law system of China. The assignment of the penalty for life and criminal detention as well as the fine punishment should be perfected. There should be community correction system. Viewing from the accusation of death penalty, there are 68 kinds of accusations of death penalties in criminal law system in China, whose number of kinds ranks the first place. India and Mongolia whose economy falls behind China have only 10 kinds of accusation. Therefore, the kind of accusation must be reduced in criminal law by declaring that death penalty is the heaviest punishment, reducing death penalty because of economic crime, modifying the relevant terms of the absolute law of death penalty and increasing selecting punishment. Viewing from the object, death penalty is not applied only to the non-adults and pregnant women. Based on the international terms and those of the other countries, the objects can be expanded to those are over 70, psychos or the women giving milk to their babies. Viewing from the legislation technique, the regulations of death penalty in China should be defined and concretized in order to be applicable for judicature. In order to protect the human right, we can increase the excuse system of death penalty to make up the blankness of legislation practiced in China.If we intend to restrict the application of death penalty form judicature, we must explain the criminal law strictly. The explanation for death penalty must conform to the legislation intention as well as criminal policy. We can not expand the application scale by taking advantage of explanation of death penalty. We should measure the standard for proof of death penalty: the fact should be not only clear with enough evidence, the proof result should also be exclusive and sole. Application of death penalty should be lawful and rational. In addition, the situation in which death penalty is applicable depends on the judge of the judges. The judges should abolish the idea of heavy punishment and promote their own quality and set up practical judging standard of death penalty case. They should pay attention to the balance of the judging result of death penalty. Thirdly, pay attention to the function of reprieve of death penalty. For all the criminals sentenced with death penalty, the judge should consider the reprieve of death penalty. We should take the death penalty as an exceptional case in certain condition and make restriction on intent of committing a crime. Death penalty is only applied when he is sentenced in prison for over 10 years. Fourthly, perfect the checking system of death penalty and defining the right as well as duty of the two parties concerned in checking procedure of death penalty to make the two parties have the effective influence on the checking result and realize the trial of checking procedure open to the public. Finally, treat the popular opinion rationally. The judges should keep a clear mind and shoulder the pressure from society. They should deal with the case legally. In addition, they should not be overwhelmed by the wrong public anger and thus they sacrifice the justice of law and independence of judicature.