On The Application Of Surrendered Leniency In Death Penalty Sentencing

The voluntarily surrender system has a long history in China. Giving the lenientsentencing to the surrendering criminal, not only meets the basic requirements of theprinciple of suiting responsibility and punishment to crime in China, but also embodiesthe China’s criminal policy of “Loosening if confess but strict if resist” well. Theestablishment and perfection of the voluntarily surrender systemare helpful to encouragethe offender to timely repentance, but also be helpful to save the cost of the functioningof the judiciary. The voluntarily surrender system has been widely applicable in China’sjudicial practice, and has played a good social effect. However, the awareness andpractices of different judges has a big difference on that if we can give the lenientsentencing to the criminals who had voluntarily surrendered themselves in the capitalcase, and how to operate concretely.Because the applicable provisions of the currentcriminal legislation and judicial interpretation on the surrendered leniency, especially inthe appliance of death penalty sentencing are not clear, it makes the operability of therelevant laws and regulations are very low. When they applied the provisions of the lawon the surrendered lenient punishment, the judges can only by the discretion to decidewhether to give the defendant a lighter punishment. Because Judges vary in manyaspects such as personal experience and knowledge accumulation, this lead to a veryconfusing appliance of the provisions of the law on the surrendered lenient punishmentin judicial practice, meanwhile, the authority of law and the judicial impartiality are alsobeing questioned by people constantly. Under this situation, it has a great significance tostandardize the appliance of law and to maintain the dignity of law and the impartialityof the judiciary, that studying the appliance of the voluntarily surrender system in deathpenalty, and the specific appliance of the voluntary surrender in death penalty cases’sentencing. This article aims at giving a brief discussion of the problem from theseperspectives such as the concept and the value orientation of the surrendered leniency,and the relationship between the surrendered leniency and the appliance of the deathpenalty, and the death standardization reform of the penalty sentencing. The detailedcontents are as follows:The first part: The origin of the problem-----Talked about from Changkui Li’s case.In this section, I will briefly described the course of the trial of Changkui Li’s case, and Iwill also give you a brief introduction to the concerns of the author on the arbitrarydiscretion of judges in death penalty sentencing process, and the difficulty to grasp the nature of the penalty scale, and thus leads to the significance and the necessity of theproblem that studying on how to apply surrendered clemency in death penaltysentencing,to pave the way for the following statements.The second part: The theoretical basis of the surrendered leniency and the concretemanifestation of the surrendered leniency in domestic and foreign criminal legislation.This section focuses on the introduction of the domestic and foreign scholars’ differentviews on the basis of the surrendered leniency, and the legislative mode selection of thesurrendered leniency system in the world’s major countries (including China).I willpresent my own thinking of the problem after the introduction and comments on thepoints mentioned above.The third part: The hardship that the appliance of the surrendered clemencysuffered in death penalty cases. In this part,I will summarize several major difficultiesthat the surrendered leniency encountered in the concrete appliance, including:1) theprovisions of the surrendered leniency in Criminal Law are too general, they lead theoperability of these provisions are not high in judicial practice;2) whether thesurrendered plot should be considered is judged by the judge though the free evaluationof evidence, so they are lack of uniformity;3) the pressure of the relatives of victimsand the public anger have a big influence on the appliance of the surrendered leniency.The fourth part: The proper understanding of the surrendered clemency in deathpenalty sentencing. This section is the focus of the entire article, in this part, I willhighlight the specific application of the surrendered leniency system in death penaltycases, and clear the Situation that the surrendered leniency should not be used in deathpenalty sentencing cases.The fifth part: Reflections of the surrendered lenient punishment system. After adetailed description of the specific applicable standards of the surrendered leniency inthe death penalty cases, I will describe some of my own reflections on the measures tofurther promote the reflections of the surrendered lenient punishment system of Chinabriefly in this part.I hope it can provide a reference for the construction andimprovement of China’s legal system.