A Study On Crime Of Intentional Homicide In Our Legislation

The crime of intentional homicide is one of the few mostserious crimes in nature in the criminal law of China, whichis the top in the chapter on the crime of infringing upon thepersonal rights of citizens and domestic rights, and is alsoone of the major crimes in which death penalty is applied inthe judicial practice. Its importance in the criterion systemof criminal law is self-evident. The effective application ofthe charges on the crime of intentional homicide in judicialpractice has played an irreplaceably positive role in manyaspects such as fighting against violent crime, frighteningcrime offender, maintaining social security and protecting thesafety of people. Influenced by General rather than detailedlegislative guiding ideology under specific historicalcondition, only the crime of intentional homicide is regulatedin the criminal law involved with intentional homicide behaviorin our country. Besides, the articles of the law adopts the simple count of a crime, and only uses two files of laws todetermine the penalty. The extent for measurement of punishmentranges from three-year imprisonment to death penalty. This kindof practice objectively poses three aspects of effect onjudicial practice: The first is that the charges in anindictment are brief but blur and criterion and basis todetermine crime or non-crime is obscure. Thus the disputes maybe aroused in the processing of some cases. And ultimately, thejudgment may be dependent on the understanding of particularpersonnel handling the case to the connotation and denotationof the articles of law; the second is that legal punishmentrange is large. Parts of the circumstances of sentencingranging from light punishment, heavier punishment, aggravatepunishment and reductions of punishment in most cases belongto discretional range, which leaves more room for thediscretion of judge. Different sentences of the same case arecommon. Widely divergent application of laws can be found insimilar corpus delicti; the third is that some homicidal acts that cannot be subjectively determined as homicide throughnegligence are generally determined as crime of intentionalhomicide. And then according to some situations of thediscretional punishment of the circumstances of the crime inthe legal punishment range of the crime of intentional homicide,the phenomenon of heavier punishment for light crime and lightpunishment for heavy offense may occur, in which the essencediverges from the principle of suiting punishment to crime. Infact, in relevant articles of criminal law in some majorcountries around the world, few of them set only one accusation,but most of them classify the crime of intentional homicide intomiscellaneous crimes according to different situations. Thusdifferent accusations, relevant charges in indictment andstatutory sentences are formulated. For example, in Americancriminal law, there are first-degree murder, second-degreemurder and manslaughter (general) murder. In French criminallaw, there are also crime of intentional homicide, murder,murder with poison and crime of provocation of suicide. Thus it can be seen that the segmentation of the types of crime ofintentional homicide is common practice in both Anglo-Americanlaw system and continental law system. What’s more, thelegislation of the crime of intentional homicide in Chineseancient criminal law also adopts the segmentation of the types.For example, in Tang Code, there are regulations of SevenMurders, which are inherited by later criminal law. Thisillustrates that the segmentation of the types of the crime ofintentional homicide has some historical origins in Chinesetraditional legal culture. On the other hand, in the processof the transplant of criminal law from western countries in themodern times of China, segmentation of the types of crime ofintentional homicide in legislation has also occurred. Thoughthe practice is repeated, it is finally adopted by the currentCriminal Law of Republic of China in Taiwan Region of China.This reflects that segmentation of the types of the crime ofintentional homicide is once a learning direction of thelegislation of the crime of intentional homicide in criminal law in our country. Thus, on the basis of reasonable absorptionof positive core of the legislation of the crime of intentionalhomicide in the criminal law of ancient China, this paperproperly learns from the beneficial experience of thelegislation of the crime of intentional homicide in currentcriminal laws abroad, and preliminarily explores thesegmentation of types of the crime of intentional homicide incriminal law of China and the feasibility of the limitedintroduction of case law from the four aspects: the separationof premeditated and intentional murder from non-premeditatedintentional murder, adding separate legislation on suicide,legalization of heavy plot and light plot of common crime ofintentional homicide and properly giving certain statutoryforce to part of the legal precedents of death penalty.