Empirical Research On Referee Reasoning In Reviewing Death Penalty

As Supreme People's Court's only public document for cases of immediate execution after reviewing death penalty,Review Judgment of Death Penalty is the last barrier of death penalty cases.The final conclusion of Review Judgement of Death Penalty,through scientific demonstrations of legal thinking such as logical reasoning and inductive reasoning,should be established on the comprehensive and rational elaboration of reasons for review.However,the current referee reasoning cannot reach such standards.While adhering to the idea of empirical research and through collecting,organizing and analyzing the data from judgments,this article comes up with some standardized ways to help solve problems in terms of the current existing problems in the reasoning part of Review Judgement of Death Penalty.The first part explores at the characteristics in reviewing death penalties.When compared to the ordinary criminal litigation procedures,the review procedure of death penalty is a procedure initiatively activated by judicial organs according to the laws,which has an administrative color.In the trail session,it uses closed written examination mainly by the judge's self-assessment which lacks the feature of confrontation at court.This makes reasoning the Review Judgement of Death Penalty especially important.Emphasizing on the reasoning part of Review Judgement of Death Penalty is based on the requirement of fairness and publicness suitable for death penalty and also based on the requirement of cautious capital punishment,restrict capital punishment and assurance of human rights.The second part researches on the current status of reasoning the Review Judgement of Death Penalty in details.In this part,it takes the method of empirical research.Taking the published Review Judgements of Death Penalty on the website China Judgements Online as research samples,the article extracts totally 100 Review Judgements of Death Penalty randomly,and organizes and analyzes the reviewing and reasoning parts in them.From the point of the distribution condition of word's proportion in the corresponding parts of the Review Judgements of Death Penalty of four types of cases,in different cases the emphasis on reasoning is obviously not the same in aspects including fact-finding and reasoning evidences,reasoning criminal character and reasoning whether to execute immediately.The judicial tradition which stresses the entity and belittles the procedure is apparent in the Review Judgements of Death Penalty.The procedural questions normally are only mentioned in formatted languages.In the third part,the article analyzes the major problems existing currently in the Review Judgements of Death Penalty.When cognizing crime facts,it lacks fact-finding and reasoning of evidence chain.The litigious right of defence counsel is hard to be protected and he cannot get the responses that he should have.The reasons for review are filled with large quantities of formatted languages which are hard to represent the judge's personal analyzation of specific cases.The reasoning about circumstances for sentencing is too subjective and arbitrary and it cannot unify the influence level of different conditions of sentencing to death penalty.Only when the judge pinpoints the applicable principles to death penalty,output the applicable values to death penalty,breaks the writing consciousness of formatted documents and establishes judicial independence and judicial confidence can he lead citizen's concept of death penally to develop in the reasoning of the Review Judgement of Death Penalty and bear more social responsibilities.In the fourth part the article comes up with basic assumptions about the reasoning standards in the Review Judgment of Death Penalty.Under the premise of cognizing crime facts,the judge should sufficiently respond to the controversial opinions brought up by defence counsel and leads to applicable legal provisions combining specific legal arguments and therefore achieves the transformation of Review Judgement of Death Penalty from format to personal value.Also the article proposes to establish standardized reasoning criteria of "extremely serious crime" and"death penalty to be executed immediately"."Extremely serious crime" is the essential condition of reasoning and reviewing death penalty.The judgement of"extremely serious crime" should combine with the objective damage and subjective viciousness of the defendant's behavior."Death penalty to be executed immediately"is the core content of reasoning and reviewing death penalty.It depends on the risk probability of defendant's repeated crime.And examination about the defendant should be carried out from perspectives such as circumstances before a crime,of a crime and after a crime.