The Research Of Defense In Death Penalty Review Procedure

The death penalty is the deprivation of life penalty method, and the deprivation is irreversible. However, death penalty review procedure is a special judicial procedure by which People’s Court check the death penalty cases. As the final checkpoint death of penalty trial procedures, review procedure is particularly important about preventing abuse of the death penalty, putting an end to slaughter and wrong killing. Whether the defendant in death penalty review procedure needs to defend, most people’s answer must be yes. But there are just six articles in "Criminal Procedure Law of the People’s Republic of China2012"and they are all regulations about power division and implementation except for article240. Therefor, it is vital to take the problems of defense in the death penalty review procedure as starting point, analyzing the present situation and problems of the defense in the death penalty review procedure and its reasons,putting forward the train of thought to solve the problem of defense in the death penalty review procedure and then discussing the new development view of the the problems of defense in the future death penalty review procedure from the death penalty effective defense problems, the death penalty sentencing defense and procedural defense three aspects, find the way to solve the problem of death penalty review procedure.The first part of this paper is to discuss the present situation of the death penalty review procedure in the defense and the existing problems. The author talks the main status of defense in the death penalty review procedure in our country and six other problems including the defense in death penalty review procedure performing practically no function because of the existing administrative review, the absence of explicit legal protection for defender in the death penalty review procedure, the limited defense space in the death penalty review procedure, lacking of necessary mutual trust between the death penalty parties and defenders, lawsuit resource disposition is unreasonable for ignoring the investment of the defender and organizations outside the law impede the exercise of defensive rights.The second part is to put forward the basic ideas for the problem of defense in the death penalty review procedure. This part is concerned with the present problems in the death penalty review procedure and makes some suggestions about its perfection.Meanwhile this part will lay the foundation for the system construction and supporting measures in the part three and part four. Including the abolition of the administrative review mode in the death penalty review procedure, establishing lawsuit pattern, ensuring the independence of the review death penalty stage, and refining procedure rules for defense lawyer to participate.The third part of this paper is to discuss the system design to solve the defence problems in the death penalty review procedure. This part is the core and the innovation points of this essay.I will try to introduce the effective system,improve the system of sentencing defence and add the procedural defence system in death penalty review procedure.Firstly,discuss the concept,character,value and origin of effective defence,sentencing defence and procedural defence separately as the theoretical foundation.Secondly,discuss the explore and the obstacle of effective defence,sentencing defence and procedural defence in the death penalty review procedure,such as the procedural defence facing the challenges of the traditinal idea of heavy entity light procedure,the burden of proof is perform practically no function,the difficulties of court to sentence innocent and the imperfection of two-trial system.Lastly,by setting the effective defense review proceeding to review death penalty cases,establish relatively independent death penalty review procedure,regulate sentencing suggestion of people’s procuratorates, refine the sentencing procedures of the judge, establish the procedures by which the death penalty review stage procedural defense rules, confirm the distribution of burden of proves.To improve the quality of defence in death penalty cases and make a real difference in death penalty review procedure by defence.The fourth part of this paper is to discuss the supporting measures in order to solve the problems of death penalty review procedure.This part is the supplement of the third part,to help effective defence,sentencing defence and procedural defence better carry out their duties by the supporting measures.Including establishing access system for the death penalty review defence,the legal consequences which the defenders in violation of the provisions of effective defense shall bear,establish the death penalty review procedure before sentencing information investigation and sentencing reporting system and the liability exemption system.