Study On The “Extremely Cruel Means” In Criminal Law

As a special pattern of manifestation “extremely cruel means” is not only a constitutive element of crime that influences criminal conviction in specific crimes,but also a circumstance of sentencing in some crimes.The conception of “extemely cruel means” means a method employed by the criminal for the purpose of commiting a crime, which contains an extreme cruelty.In the articles of China’s criminal law, there are two places explicitly stipulating “extremely cruel means”.The first one is Article 49 in criminal law, the other is Article 234, in which the main crimes involved are crime of intentional homicide and crime of intentional injury. In the crime of intentional injury of Article 234 of criminal law, “extremely cruel means” is a circumstance of sentencing. However, in articles related to crime of intentional homicide, although “extremely cruel means” is not explicitly stipulated the judge will consider it as factor for severe punishment in judgment of death penalty in most cases under the circumstance that “extremely cruel means” causes death to a person. Determined from the perspective of the inner constraction of criminal law scheme, there’s a solid ground of legal priciple on which the "extremely cruel means" should be taken into consideration in the homicide case.In discussion of a few typical cases in which the criminal means are confirmed by judicial authorities as cruel or extremely cruel, when identifying “extremely cruel criminal”, the following factors should be emphatically considered: firstly, objectively the criminal means must do great harm to society or has great objective harm; secondly, duration or number of times of the criminal behavior; thirdly, subjectively, it must reflect extremely malignancy of the perpetrator, i.e., the perpetrator intentionally pursues psychological or physical pains of the victim.