| In recent years, with the increasing overflow of drug crime, the rate of the application ofdeath penalty to drug crime in China is still high, ranking top among all charges on deathpenalty. Death penalty is the most severe criminal punishment of depriving of prisoners’lives.Any mistaken application may cause unimaginable consequence. With the popularization ofthe protection of human rights and the mitigation of punishment, imposing restrictions on andabolishing the death penalty for drug crime have been the tendency of drug-related crimes invarious countries. From all of these, it is obvious that our country’s high rate of death penaltyon drug crime is untimely. Under the guidance of the temper justice with mercy policy, Chinabegins to impose restrictions on death penalty’s application to drug crime. Therefore, it is oftheoretic necessity and practical urgency to study death penalty’s application to drug crimes,especially the summary execution of death penalty. Besides, circumstances of sentencing, inthe cases of drug crime, are the key factors for the application of defendants’penalty. Theaccurate judgment of circumstances of sentencing is beneficial for the reasonablemeasurement of penalty and can avoid excessive sentencing, thus it is of great significance forrestricting the application of death penalty. On this basis, the author focuses on the study ofimmediate execution of death penalty on drug crimes to strengthen the pertinence of the study.For this purpose, the author selects a typical case, namely,ACase about Trafficking in andTransporting Drugs, and probes into it by means of case analysis in order to integrate theorywith practice and then provide instruction for the restriction of the application of immediateexecution to drug crimes.Apart from introduction and conclusion, this thesis consists of four chapters,22,000words in all.Chapter one introduces the general information of the case from such four aspects ascause of action, details of a case, divergence and focus of dispute. It is a real case investigatedby the author during her internship. Except that the name of defendant undergoes technicalprocess, the details of the case and circumstances of sentencing are real. The defendant,Zhang (given names withheld), involves in trafficking in and transporting drugs in a largequantity (3,482.6g of MaGu and350g of heroin in all) and is also the recidivist of drugcrime, the court hereby sentences him to the immediate execution of death penalty. However, the affirmation of the quantity of the defendant involved in the case is controversial andmeanwhile the defendant is equipped with a series of statutory and discretionarycircumstances of sentencing for lenient punishment, such as supporting sucking by traffickingin drug, confession, low purity of drugs, drugs failing to flow into the society, good attitudetowards showing repentance and physical disability. Under these circumstances, it is worthdiscussing whether it is rational to sentence Zhang to immediate execution of death penalty.The divergence of this case concentrates on two aspects, the involved quantity and theapplication of similar details, from which it can be clear that the focus of dispute of both sidesis whether it is rational to sentence the defendant to the immediate execution of death penalty.Chapter two analyzes relevant legal principles of this case, namely, the circumstances ofsentencing. Firstly, it expounds its concept, classification and significance; secondly, itintroduces the involved specific circumstances of sentencing in the application of immediateexecution of death penalty to drug crimes from statutory circumstances and discretionarycircumstances; thirdly, it analyzes problems in dealing with circumstances of sentencing fordeath penalty on drug crime in the judicial practice, represented by quantity-orientedstatement, preferring statutory circumstances to discretionary circumstances and heavierpunishment for serious crimes and lesser punishment for slight crimes, and then proposes thecorrect principles for dealing with these problems, namely, it should give the overallconsideration on various statutory circumstances and discretionary circumstances based onthe quantity and treat circumstances of sentencing with severity or leniency, which is also theprinciple of quantity plus circumstances.Chapter three comes to the research conclusions of this case. Based on the jurisprudenceanalysis of circumstances of sentencing and the concrete case fact, the author holds that thequantity of cases Zhang San is involved in has reach the standard of death penalty and he isthe recidivist of drug crime, but he is equipped with six circumstances for lesser punishment.Based on the overall consideration, it is more reasonable to give him a lesser punishment andsentence him to death with two-year reprieve.Chapter four reaches two inspirations based on the analysis of this case. One is how toapply the principle of quantity plus circumstances, which is a directional principle and lacksspecific operation rules and regulations. The author puts forwards some suggestions on theoperation according to relevant legal provisions and her own summary. The other is to attachsufficient importance to the effect of lesser punishment through discretionary sentencing. Since the lesser punishment through discretionary sentencing is universal in drug crime andeasy to confirm, the confirmation of lesser punishment through discretionary sentencing maylead the defendant to get lesser punishment, playing an important role in restricting theimmediate execution of death penalty.In short, it is in keeping with the world trend and the trend of the times of strictlyrestricting and gradually abolishing death penalty through in-depth discussion on variouscircumstances of sentencing for the death penalty of drug crime, proper confirmation andapplication of these circumstances and more serious mastery of the sentencing standard forthe application of the immediate execution of death penalty to drug crime under the guidanceof combining punishment with leniency. |
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