The Theoretical Dispute On The Continuation And The Abolition Of Death Penalty And The Legal Regulation Of Death Penalty

Death penalty is the most severe penalty, while the criminal law of China still retain the death penalty even the international trend is to abolish death penalty. Therefore, these are some burning issues in the academic field and the judicial practice field in China, such as whether the criminal policy of the death penalty in China is reasonable, whether the death penalty should be abolished due to the international trend or the death penalty should be gradually abolished by controlling the death penalty, and how to control the death penalty. In the first part of this artical, the origin of the concept and the historical evolution of the death penalty were discussed. The concept of death penalty originated from the concept of revenge in primitive society. It was a process that the application of death penalty turned from more to less and from harsh to mitigated from the view of the historical evolution in the Western countries, which fully reflects the progress of human civilization and the reexamination of the penalty function, also initially reveals the tendency of the limited application of death penalty. From the point of the legislation evolution in China, it went through the following stages: death penalty strictly controlled, death penalty not strictly controlled, death penalty strictly controlled again, death penalty both strictly and flexible controlled.In the second part the dispute on the continuation and the abolition of death penalty was discussed. Those who are in favor of the abolition of death penalty think that death penalty not only goes against the principle of laws to protect lives, but also causes some irreparable results which are miscarriages of justice. Those who are in favor to retain death penalty think that there are some reasons of the continuation of death penalty due to cultural background, and death penalty can achieve the purpose of criminal penalty as well. The focus of the disagreement between two opinions are whether death penalty is in violation of the social contract, whether death penalty goes contrary to the goals of criminal penalty, whether death penalty goes against the values of criminal law. In the third part, the detailed suggestions on how to improve the system of the death penalty in China were put forward, including controlling strictly the death penalty in legislation, improving the system of the review of death penalty, improving the executing progress of death penalty and developing the alternative measures of death penalty to restrict death penalty.