On The Protection Of The Rights To Defense Of The Death Penalty Review Procedure

China's death penalty review procedure was bom in the period of the ancient feudal monarchy.After a long term of development,the death penalty review procedure has inherited the thought of using death penalty with caution from ancient time and still plays an important role in controlling death penalty and protecting human rights at present.But the procedure has also been profoundly affected by the old trial mode of administrative approval and is still conducted in the written-examination way.Before The Supreme People's Court of The People's Republic of China(referred to as "SPC")recalled the approval authority of death penalty in 2007,the death penalty review procedure once excluded the participation of defenders and the protection of defendant's rights.Recently,there has been more and more provisions of protecting the legal rights of defendants and defenders in the death penalty review procedure.For example,Criminal Procedure Law of the People's Republic of China(referred to as"CPL"),which has been revised for the third time in 2012,has clearly stipulated the right of defendants to be questioned and the participation right of defenders.However,the improvement of the death penalty review procedure is not obvious and there still exists many complaints and doubts about the protection of the rights to defense of the death trial review procedure,such as how to protect the defendant's rights effectively under the trial mode of written-examination,whether the Legal Aid System is applicable to the death penalty review procedure,what kind of rights defenders will have and how to use these rights,what should be done when the right to defense is damaged and so on.The death penalty review cases can be divided into two types:the cases handled by SPC and the cases handled by the Higher People's Court(referred to as "HPC").Although the persons in charge of the two types of cases are different,these cases apply almost the same laws and regulations.In order to focus on the research of one kind of death penalty review procedure,the paper mainly discusses the protection of the rights to defense of the SPC's death penalty review procedure since the cases handled by SPC is more urgent.The relevant recommendations are also applicable to the HPC's death penalty review procedure.The paper is divided into four parts to discuss the protection of the rights to defense of the death penalty review procedure.The first part is the introduction to the protection of the rights to defense of the death penalty review procedure.On the basis of clarifying the nature of death penalty review procedure as the criminal trial procedure,this part briefly introduces the development of the rights to defense in the procedure and analyzes the necessity and feasibility of strengthening the protection of the rights to defense in the procedure.The second part is the investigation of the rights to defense of death penalty cases in other countries and regions.In this part,the author selects the United States,Japan and Taiwan,which are three representative countries and regions that still retain the death penalty,as the studying objects,and briefly introduces their judicial procedure,remedy procedure and the protection of the rights to defense of death penalty cases in order to help strengthen the protection of the rights to defense of the death penalty review procedure.The third part shows the status of the protection of rights to defense in death penalty review procedure and explains the reasons for the above status.By means of the statistical research of the Death Penalty Review Criminal Orders made by SPC in the last two years,the author summarizes the practical condition of the protection of rights to defense in death penalty review procedure and further explores the reasons for the above condition in this part.The fourth part is the suggestion for improving the protection of rights to defense in death penalty review procedure.After the research and discussion in the above three parts,the author believes that the following four aspects should be improved.First of all,it is necessary to appropriately litigate the death penalty review procedure and innovate its trial mode.Second,the defendant's rights to self-defense and of receiving the professional help from defenders should be fully protected in death penalty review procedure and the Legal Aim System should also be applied to the procedure.Third,it is necessary to legislate in detail about the defender's rights and how to exercise those rights in death penalty review procedure.Last but not least,the corresponding right-relieving mechanism should be improved.Before the Death Penalty Review Criminal Order comes out,the defendants and the defenders whose rights to defense has been infringed should be provided with remedies.