| The 8th Amendment to Criminal Law of the People’s Republic of China defines the limited commutation for the first time, and the Supreme People’s Court introduced the provisions on some issues of trial procedures about Death sentences with a suspension cases of limited commutation, explicating the rules of trial process on cases of limited commutation. After that, although the Supreme People’s Court issued two guiding cases- Wang Zhicai intentional homicide and Li Fei intentional homicide, but we still do not know the application criteria of the limited commutation. Therefore, theoretical contentions on the limited commutation and chaos of the trial practice, such as different criteria, arbitrarily broking and same case with different sentences are hard to avoid. Theoretical and practical problems lie in:(1) Is the theoretical basis of the limited commutation is “light raw punishment but severe death penalty” or restriction application of the death penalty, following the international tendency of abolition of the death penalty?(2) Regulated in the general principles of the Penal Code, is the limited commutation punishment discretion measure or the system of the penalty execution, even an alternative measure to death penalty with Chinese characteristics for restriction application of the death penalty and prompting China step the road of abolishing the death penalty?(3) What kinds of circumstances for sentencing is applied to the limited commutation? How to avoid reproducibility of the circumstances for sentencing? What on earth are the application criteria of the limited commutation?China has been always a state with severe law and strict punishment, providing a rich varieties of the execution of death penalty which some extremely tragic. But with the social development and concept of human rights is deeply rooted in the hearts of the people, the criminal law is more and more moderated to meet the requirement of the modestly restraining spirit. Under the press of the world criminal law trend of abolishing the death penalty, China, as a large developing country has stepped on the way of abolishing the death penalty. It is unprecedented that the 8th Amendment to Criminal Law has abolished 13 charges of death penalty at a time, proving that our nation is implementing the Criminal Justice Policy of kill less criminals with cautious attitude and the criminal law’s attitude towards death penalty is gradually abolishing. Another way in the 8th Amendment to Criminal Law to implement the Criminal Justice Policy of kill less criminals with cautious is the limited commutation. Because the Penal Code cannot abolish all the death penalties and many people still believe the deterrent force of cruel punishment for capital felony. So it is wisdom to get judicial practice basis of abolishing death with the aid of limiting application of some capital punishment of felony. The limited commutation contains the rationality of the reduction of the death by nature, and it is an alternative measure to death penalty below the premise of retaining the death penalty in nature.The principle and nature of the limited commutation decide its application criteria, which is important to limit the discretion of the judiciary reasonably, reducing broken justice and limiting and controlling the death penalty. The starting point of the limited commutation is limiting and controlling the death penalty rather than changing “light raw punishment but severe death penalty”; the limited commutation is system of punishment discretion rather than system of the penalty execution; the application criteria are:(1) the offender is qualified for legal lighter punishment;(2) the criminal means of the offender are not extremely cruel;(3) The object of crime is not innocent and special group;(4) the offender commits crimes based on forgivable motivation;(5) the offender’s attitude shows that there’s bit or no recommitment possibility;(6) the limited commutation can make the legal effect and social effect unification organically. |
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