The Selection Of The Mode Of Sentencing Procedure Of The Death Penalty Cases

Death penalty system is an important criminal justice system, it was produced along with the state arising, and it was improved with the replacement of social system and with the development of the country. With the advanced countries of Europe into the capitalist society, and the widespread launch of the Enlightenment, people's increasing emphasis on the value of life, and began to attach importance to the human's basic rights, thinkers, philosophers, criminal justice scholars began to re-examine the death penalty system. Death penalty has the natural attribute of depriving human's life, and its means of implementation is cruel, so the debate of death penalty's existence or abolishment happened. And it was spreading around the world, including China. The view of those who advocate abolition of death penalty is on the basis of the global economic and social development, so they receive more supports, and they take the initiative position in this debate. Now"restricting the death penalty, abolishing the death penalty"has become the trend of the world development. For the domestic factors and the international factors, China can not abolish the death penalty shortly, but as a responsible big country, we should cater to this trend, and reform the death penalty system by limiting the death penalty, abolishing the death penalty progressive gradually.From a legal point of view, there are two ways to limit the death penalty, first, by substantive law, for example, reducing the death penalty terms; second, by procedural law. Although limiting the death penalty by the substantive law looks great, the public still trust in the death penalty, there is limited room to play a role through limiting the death penalty by the substantive law. So we should use the procedural law more to limit the death penalty, and it's useful for implementing the death penalty policies. Also it's useful for the eventual abolition of the death penalty in China. There are many ways to limit the death penalty by procedural law. For example, reforming the death penalty cases'first instance procedure; constructing diverse ways of trial; distributing the burden of proof reasonably and increasing the proofing standards in the death penalty cases; setting up a separate sentencing procedure for the death penalty cases; fully protecting the rights of the accused in the death penalty cases; exercising the death penalty's immediate execution carefully; etc. Setting up a separate sentencing procedure for the death penalty cases is a valuable path selection to limit the death penalty. We have to choose the mode of the separate sentencing procedure before we want to set up a separate sentencing procedure for the death penalty case. The theory of the mode of separate sentencing procedure is rich. The mode of the independent sentencing procedure can be divided into the mode of completely independent of sentencing procedure and the mode of comparatively independent of sentencing procedure, which is based on whether the judge who have the right to convict, the judge who have the right to sentence is the same. And the mode of comparatively independent of sentencing procedure can be divided into the mode of isolation comparatively independent of sentencing procedure and the mode of mix comparatively independent of sentencing procedure, which is based on how the conviction activities and the sentencing activities are arranged. Due to the different structures of each mode, there are many difference functions (such as efficiency, scientific, impartial, social, etc) among these modes. The mode of isolation comparatively independent of sentencing procedure is suffering from the questions of legality, difficult to break the plight of the modern judicial system, difficult to keep up with the efficiency of litigation. We need to respond to the above questions. First, the mode of isolation comparatively independent of sentencing procedure is better than the mode of mix comparatively independent of sentencing procedure for promoting just sentencing. Second, because of the harshness of the death penalty, we need to set a more scientific and more reasonable procedure for death penalty cases. Excluding the mode of completely independent of sentencing procedure, the mode of isolation comparatively independent of sentencing procedure is better than the mode of mix comparatively independent of sentencing procedure, and our country has the soil for the mode of isolation comparatively independent of sentencing procedure's survival.