Disscussion Of Application On Discretion Of Punishment In Death Penalty Cases

The discretion of punishment is an objective existence plot that affects the deathpenalty judgment in our criminal law,But because of the fuzziness of the law regulation,the actual practice of the discretion of punishment is always arguable. Understand theconcept of the discretion scene is the foundation to further study how it should apply tothe death penalty.The discretion of punishment should be considered as a positive&objective fact that based on the generality of the law, where its detail content andfunctionality is based on the regulation and legislation spirit of the People’s Court,summarized in the judgmental practice, and reveals that when the behavior is less harmfulto the society or human being the criminal penalty shall be reduced or removed based onthe actual fact.The sense of discretion of punishment for death penalty shall reflect as: itcan affect the actual measurement of the death penalty cases; it can affect the level ofstatutory sentence&punishment in the death penalty cases; it can provide a basis forjudge the criminal scene scientifically. Based on the conclusion of empirical study, thelevel of discretion of punishment for death penalty can be classified from high to low as:the penitence attitude of the defendant, the attitude of defendant actively seek forcompensate the victim’s loss and victim’s forgiveness, if victim also has fault, anddefendant’s appearance at ordinary times. Besides, the age of the defendant and Means ofcrime also show important effect in the judgment. At present times, the major issues toapply the discretion of punishment are mainly show as: the absence of discretion ofpunishment for death penalty in legislation; ignorance of the discretion of punishment fordeath penalty; the regional difference of discretion of punishment for death penalty is huge.In order to improve the scientificalness and rationality of the discretion of punishment fordeath penalty, there are few areas need to be developed: add one more section in Clauseof No.62of Criminal Law as2nd section “although no heavier or less punishment plot tobe applied in this law, if there is plot of discretion of punishment, it should be alsomeasured during the hear of the case” in order to legalize some typical discretion ofpunishment plots.Also the judicial authorities shall publish the judicial interpretation ofthe discretion of punishment. Secondly the Judge shall pay attention to the application ofthe discretion of punishment in death penalty cases.And the last is to improve domesticguidance of typical death penalty cases, draw on the experience of foreign institution,implement independency of judgment process and deploy domestic institution of penaltymeasurement guidance.