“not Is Have To Summary Execution”in Suspension System

Looking around the reform tendency of international criminal law, based on China’s national condition and public opinion, strict restraint on the application of death penalty until its abolishment have become the irresistible trend of criminal law reform. The primary concept of retribution justice tends to be more rational step by step due to the infusion of humanism. Based on this major premise, the death penalty that takes the retributive punishment as the theoretical basis also attracts wide attention. However, China’s unique reprieve system that shall be a system of punishment to restrict the death penalty caused lots of problems due to the unclear boundary with immediate execution. As stipulated in China’s criminal law, the difference between reprieve and death penalty is only defined by “Not is Have to Summary Execution” without any clear and detailed regulations. It is urgent to further improve the reprieve system from legislation and judiciary by functioning the social adjustment of reprieve system, improving the trial quality of death penalty case and implement criminal policy of combining punishment with leniency.First,from the legislative significance and application condition of reprieve system set out,this paper put forward the viewpoints that “the most serious crime” is the precondition of reprieve,and the personal danger of criminals is the decisive condition to measure the application of reprieve. Then,this paper suggested to establish specialized institutions to conduct expert opinion on the personal danger of criminals as sworn evidence.Second,in terms of “not is have to summary execution”,as the circumstances have any change,the death penalty cases will likely to be led to a different result. This paper collected all related statutory circumstances and discretionary circumstances of “not is have to summary execution”, combined numerous cases to carry out discussion on several typical difficult practice problems.And then, this paper mainly analyzed the cautious application of discretionary circumstance in the death penalty cases based on the modern judicial concept of “no punishment in doubtful cases”. The judicial staff members should prevent the doubtful cases regarded as the death penalty with a reprieve cases. This is also an unnoticeable problem in the theoretical circle for a long time.Finally, this paper put forward several suggestions on the unclear applicable standard of “immediate execution of a criminal punishable by death is not deemed necessary”from the perspective of legislation and judiciary. In terms of the ambiguity of the applicable standard of “Not Necessarily Immediate Execution”, this paper puts foreword suggestions of judiciary explanation and supplement, the carry out of death penalty case guidance, strengthened supervision of inspection institutions as well as the construction of independent sentencing procedures, which can supplement juridical practice and the legislative perfection of death penalty with a reprieve.