On The Non - Normative Factors In China 's Death Penalty

The essence of modern law is the principle of statutory crime and punishment that advocates "One could not be convicted and punished for lack of express provision of law." On the surface, the Non-normative Factors are the violation to principle of legality. Actually, its influence to death penalty is reasoned, for legalism’s drawbacks becoming increasingly obvious and the rising of theory of Justice Sociology. However, as the same sentencing factors abandoned by law, Non-normative Factor is not equal to the Discretionary Circumstances of Sentencing. The former is a species concept, while the latter is a genus concept. According to the nature of sentencing circumstances, the Discretionary Circumstances of Sentencing can influence the judgement of social harmfulness, subjective evil and personal dangerousness. It can be divided into two categories:one is criminal facts, the other is factors of criminals. In addition, there are other external factors that actually influence the sentencing of Judge. They neither affect the judgement of social harmfulness, and subjective evil, nor the judgement of personal dangerousness.The classification of the Discretionary Circumstances of Sentencing just agrees with two standards of the appliance of death penalty. The active standards-"The crime committed is extremely serious" and "the immediate execution of a criminal punishable by death is not deemed necessary" are comprehensive consideration of social harmfulness and subjective evil and personal dangerousness. In this situation, it leads to the logical confusion and repeated appraising. Therefore, it’s necessary to distinguish the connotation of the applicable Standards. We can judge "The crime committed is extremely serious" from the point of social harmfulness, and subjective evil, which intends to the sentencing discretion of punishment aimed at revenge At the same time,we can also judge "the immediate execution of a criminal punishable by death is not deemed necessary" from the point of personal dangerousness, which intends to the sentencing discretion of punishment aimed at prevention. Revenge and prevention are exactly the essence of criminal responsibility.Above all, what discussed previously can be the favor of feasibility necessity to the standardization of non-canonical factors. Its legal hierarchy should be Criminal Law. Its canonical form should be "Typical Case and Save Clause". At last, before its name, content, conditions and applicable rules clearly normalized in Criminal Law, the Discretionary Circumstances always cannot be called legal circumstance.