On The Judicial Control Of Death Penalty

Along with the deliberation and enactment of the Eighth Amendment ofCriminal Law, the death penalty became a hot topic of concern to academics, legalpractitioners and the general public. In the amendment, the object of application ofthe death penalty is further qualified, the provisions of over75years old whocommits a crime, under normal circumstances does not apply the death penalty. Andto further implement the criminal policy of combining punishment with leniency, andremoved the death penalty of13non-violent economic crimes. Further restrictionsreprieve commutation and the commutation of the sentence of life imprisonment. Thecontents on the death penalty of the Eighth Amendment of Criminal Law indicate thelegislators insist on the death penalty policy of “retain the death penalty,and limit theapplication of the death penalty” in the legislation, and towards the goal of theabolition of the death penalty. Limit the death penalty at the same time actuallyaggravate the punishment of other penalties, to further implement the criminal policy,change the situation of “death penalty too aggravate, and the other punishment is toolight" in China. The legislative restrictions on the death penalty at the same time,judicial control of the death penalty is very necessary and urgent. Because of thejudge’s discretion and the generality provisions of the law and other factors on thejudicial practice, and there is no relevant judicial interpretations of the death penaltydo specific requirements, so there is considerable space for judicial control of thedeath penalty. The judge exercises the discretion in the court hearing process forpenalty, making the cases which the statutory maximum penalty is a death penaltyfollowing the criminal policies that limit the death penalty for guidance, and strictstandardization of sentencing, according to the circumstances of the cases and makesthe number of death penalty the immediate implementation of the reduction. This article is talking about from the argument of abolishing or retaining thedeath penalty in the history of the world. And make a brief introduction andcomments of the representative individuals. Although the theoretical debate of thedeath penalty is inconclusive, the tendency of the death penalty repeal globalizationhas not stopped. With the rising of the human rights movement, the abolition of thedeath penalty and limiting the death penalty has become an international trend. Underthe impetus of the activities of international human rights organization issued anumber of documentation, countries that abolish the death penalty have increasedrapidly in the world. Countries retain the death penalty will also be the actual numberof executions is controlled in a very small range. In stark contrast, the number ofexecutions in China is far more than the sum of the global number of executions.Although China has not yet announced the death penalty data, the sheer number ofexecutions in China has become an open secret. China has always pursued thepolitical position of less kill and kill strictly, and the policy of restricting theapplication of death penalty. Driven together at home and abroad, we need effectivefor the control of the application of the death penalty to thinking about solutions.How to control the death penalty can be carried out in many ways, such as the legalmeans of reducing the number of death penalty charges in the legislation, and thejudicial control of the death penalty on the actual implementation, and on theprocedural law strictly to death that the standard of proof, while outside these legalchannels, the social ways such as robust crime prevention mechanisms are toonumerous. Not only the issue of the death penalty is a social problem, it need to thinkand solve multi-channel and multi-angle, but the death penalty also is a legal issue. Inthe legal channels to resolve the question of death penalty, judicial control channel isa better choice. By controlling the practical application of the death penalty in thejudicial, the practical application of the death penalty can be effective in reducing andcan keep maintaining the existing legislative stability. This way can effectivelyimplement the death penalty policy in China of “limit the application of the deathpenalty”, and achieve the protection of human rights of the offender. Looking at thestatus quo of China’s application of the death penalty, intentional homicide is theapplication of the death penalty charges and account for absolutely gigantic proportions. On the one hand, it is determined by the criminal nature of intentionalhomicide that extremely serious violations to others’ life. Homicide has a highincidence of community. And people concerned about this type of cases. It also takesa direct impact on people for the concept of the death penalty. On the other hand,intentional homicide has complex forms of expression. Different cases have differentsocial harmfulness. The offenders also have different grade of dangerousness andsubjective. But the legislation of the provisions on intentional homicides isrecapitulative. Depend on the death penalty policy and the spirit of the legislation, therestrictions on the application of the death penalty judicially is the best standpoint tothe death penalty. The target of this article is that on the judicial way to control deathpenalty, and to do reasonable explanation accordance with the general provisions ofcriminal law on the death penalty in principle standard, and put the spirit of thecriminal policy of the death penalty in China to the death penalty for the crime ofintentional homicide of the application of the death penalty. For both of the deathpenalty immediately and the death penalty suspended for two years to find differentapplicable standards, and look forward to which reasonable ideas on the article canhelp to limit the death penalty and abolish the death penalty. This article also advisesto promulgate the “Death Penalty Sentencing Standard of Intentional Homicide” bythe Supreme Court to prescribe.