| Since the establishment of the system of reprieve, the design defects of reprieve system did not stop the discussion. There are a lot of people who would like to think the reprieve system in China has logical flaws that reprieve system is not reasonable. I do not intend to discuss the rationality problem of death penalty in this paper, because it is certainly not related to the rationality or the controversial of reprieve. Since immediate execution of death penalty and execution system can not be abolished in the short term, I also do not intend to deny the death sentence with a reprieve as restrictions on the death penalty executed immediately applicable practical rationality. I just want to analysis the status of legislative and judicial reprieve system, to investigate the rationality of the provisions of the reprieve, and its future development trend, improve the reprieve, as well as to take a discussion on the reasonable and unreasonable especially the new amendment to modify the existing system of reprieve. According to the criminal law amendment(9) changes the death sentence with a reprieve, on the reprieve in the judicial application, reprieve’s position in the penalty system and the execution of the death sentence with a reprieve from three aspects the death sentence with a reprieve system rationality are discussed in detail in this paper.This paper is divided into four parts.The first part is introduction, in addition to the research value and meaning, the author of death results in the literature made a systematic literature review. In the past on death are not uncommon. Of the existing research results, the relevant punishment system research and the research of the death penalty, life imprisonment while also has great reference value, for this article but because of the criminal law amendment(9) fine-tuning of the suspended system makes the previous studies need some new changes to the criminal law to do the analysis of the advance with the Times. Previous research results, of course, for the purposes of this paper still has considerable reference value. This article will compare how to adopt the method of historical research, the method of empirical analysis, comparative research method, research in material, on the basis of in-depth analysis and research focus, through the integrated use of research methods, solve the problems mentioned above. In summary, the previous criminal law academia suspended research articles, though there have been many, but because the new amendment, and brought legislation practice and theory to discuss a new topic. Comprehensive reflection on the suspended system rationality, which is beneficial to promoting the construction of the rule of law, is conducive to improving the socialist system of death penalty, but also more conducive to standardize the suspended death sentence is carried out. Need special pointed out that, in this paper, the latest death reform as the research key, in order to reflect rationality of the suspended system this old topic to find a new breakthrough point.At the end of the introduction part, the author of this paper mainly deals with the research emphasis, and the relevant concepts of this article involves the stand. The author analysis the relationship between the concept of death and the death penalty, enumerates the controversy about suspended system. In the existing legal framework in our country, although the death penalty is a punishment mitigation has two execution modes, with a two-year suspension of execution immediate execution. Although it was a life sentence, but the death is between die and die a penalty enforcement measures. And in most cases, death is not dead. Because of this, alone on the rationality of the suspended system of investigation and argumentation is of greater significance. The last part of the introduction, the author take the new amendments to the system of reprieve in commuted the limit conditions of death penalty, the extension of the probation period, adding reprieve can be changed to life imprisonment from three aspects of change are briefly introduced.In the first chapter of the article, I tend to explain from the reprieve change execution of death penalty legal logic and thinking during the test of intentional crime under the influence of the two are discussed within the probation period of the intentional crime provisions of the understanding. And compared to the judicial practice and the reprieve of the death penalty, the application of suspended death sentence commuted the death sentence from the immediate execution probability, the criminal law amendment(9) announced before the probation period intentional crime death penalty commuted immediately executed the three aspects of the judicial practice of the commuted the death sentence with a reprieve for immediate execution of death sentence out. Through literature investigation, the author found that even in the criminal law amendment(9) before, in the practice of suspended death sentence "one size" fits all of the death penalty was not completely, objectively to the probability of death penalty is also very low. That criminal law amendment(9) increasing "bad circumstances" as a suspended death sentence commuted the death penalty executed immediately, in addition to elevation sentence commuted death sentence with immediate execution conditions, more is indicated that China’s restrictions, reduce the death penalty for the determination of the conclusion.For approved suspended execution conditions of "bad circumstances" statement is still too fuzzy point of view, the author believed that, for the moment, a more clear standard is more clear, suitable for horizontal penalty comparing, but perhaps in the future will become a kind of bondage. Once again, if our modification for death and reduce death penalty for nine charges such as legislative reforms is to reduce the application of the death penalty, then we can completely by reducing the criminal policy of death penalty and constantly raise the standard of "bad circumstances" scenes, until the penalty overhead. So the author thinks that to formulate a more obscure standard to cope with the changing social change, especially the citizen, the judge for the idea of death penalty is of practical significance, we should be to give more trust to the lawmakers and judicial organs.The litmus test of a suspended term intentional crime and not approved, the execution should be ruled out suspended test period intentional crime plot is lighter for many times. Although this condition is not reflected in the criminal law, but according to the analysis of the "bad circumstances" scenes, if the criminal is still many times in the suspended test period of intentional crime, its social hazardous and dangerous to life criminals is much higher than normal, due to the comprehensive evaluation for their past actions, real many times of intentional crime is not suitable for the test period.In the second chapter, I took a detailed analysis within the test period of the intentional crime recalculated probation period. Although death test period to recalculate the regulation belongs to the first time in criminal law. But from other scholars research results in the examination test suspended during the period of past crimes mild conditions, set the punishment principle of combined punishment for several crimes, actually had minor intentional crimes in the judicial practice and execution has not been approved, shall also be recalculated suspended test period. In view of the criminal law amendment(9) has been clear about the death test period minor can not executed intentional crime, can be expected in the future prison felons are bound to increase. Since the criminal law amendment(8), because the suspended limit practice and parole crime increase, that makes the number of prisoners and begin to produce larger structure change, rising amount of mobsters, felons increasing, old and sick to increase significantly in view of the security pressure, prison education reform with new challenges, increased costs. However, others are the actual execution time of our death is too short. Looked into why, on the one hand, prison authorities have lengthened felt the death of felons actual detention time of all kinds of pressure, is still in exploring solutions. Or, on the other hand, some scholars think that our country criminal law set punishment is too short, death is too light. This is also in the practice of the implementation of "life sentence is too long" been "life sentence is too short" awareness deviation and difficulties the embodiment of the contradiction. Through the analysis above, I believe that this change is very meaningful solve the existing major meritorious service and the plight of the intentional crime. In reducing death to extend the probation period rate at the same time, to ensure the effect of reprieve deterrent for criminals. The new regulations the criminal law amendment(9) is to solve the two problems in the probation period of intentional crime, the rationality of the design of the death sentence with a reprieve system has positive significance.The third chapter of the article, the author analyzes the convicted of reprieve of corruption and crime can’t be applied the parole, the reason of commutation of sentence to life imprisonment. On the one hand, the new regulation can balance escape extradition corruption crime punishment and domestic direct arrested crime between the actual execution period differences. On the other hand, with the increase of the threshold of death penalty, the application of life imprisonment for the execution of the death penalty can be used as the foundation for our country to gradually abolish the death penalty. And in life imprisonment American judicial practice analysis, comparison on the basis of the death penalty and life imprisonment severity that increase without the possibility of parole, commuted to life imprisonment after the system of death sentence with a reprieve and death although eventually will inevitably destroy, but now also has certain rationality. The criminal law amendment(9) for the reform of the system of death, again increased the amount of death penalty, death as a kind of between life imprisonment and death penalty execution, have been able to completely cohesion between two sentences before and after the weight of the ladder. Modified reprieve serving actual minimum period of basic and life imprisonment coincidence, the maximum and immediate execution of death penalty mentioned in the same breath, make no between imprisonment for life and death penalty ladder more perfect.The author believes that the rationality reflection on the Reprieve should be evaluated according to the circumstances. In a long term, reprieve system does have tectonic logic rigorous and ethical relationship of science of defects. But from the current point of view, especially from the criminal law amendment(9) to reprieve system improvement of view, system of death sentence with a reprieve for the current judicial practice still has certain practical significance. Just during this time, the concept of the punishments in China, the state of public opinion, the justice department know the change of legislation, all need the accumulation of time, although we can use for reference the experience of other countries’ early, but I’m afraid I cannot skip the necessary way of historical development.As to in the process, whether it will be fully replace the death penalty or death as a suspended death penalty of procedure, the key is how to make the abolition of the death penalty process combined with our country social and legal situation. As this article discusses the revised suspended system, even with some small problems, but it has solved the most logical contradiction in practice, in line with the current concept of penal reform need, is also in line with the current criminal policy, the author thinks that from the current perspective, the rationality of the existence of the death has its ought to be. |
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