The Research On The Application Of Death Penalty By The Discretionary Circumstances

The discretionary circumstances of sentencing is digital which the law of not express provision,excepted the legal of sentencing plots.presented the social harmfulness and personal hazard.In sentencing,the judge must consider the fact that appropriated the circumstances may affect the severity of the sentence,the light,the mitigation or the exemption from punishment.In the death penalty,the application of the discretionary sentencing plot has sufficient theoretical basis and realistic basis.the restraining theory of criminal law,the penalty individually theory and the criminal policy of leniency are the theoretical basis for the restriction of death penalty.The optional legal penalty construction,the principle of the applicable standard of death penalty and the setting and application of the death penalty system are the realistic basis for the restriction of death penalty.Based on the judicial practice of China,this paper elaborates on the typical cases of punishment.In the case of the crime before the crime,the individual situation of the criminal,the victim's fault and the victim's commitment have a great influence on the application of the death penalty;In the case of crime,the degree of the crime and the criminal means have a certain effect on the death penalty.It is also an important basis to limit the application of the death penalty in the circumstances of the punishment after the crime,the positive reduction of the consequences,the confession attitude and the expression of repentance.In the judicial practice in our country,using discretionary sentencing plot to limit death penalty also there are some problems,including the standard not unified,use optional the gender is big,concurrence of applicable standards for discretionary sentencing plot is difficult to grasp and the written judgment of expression is not standard,etc.Therefore,we should solve the three aspects of criminal legislation,criminal justice and supporting system.First of all,in the legislative aspect,it is necessary to realize the legalization of some discretionary circumstances.Secondly,it is necessary to standardize the applicable standards and operation methods in judicial aspects.In addition,the corresponding supporting measures should be improved,including the improvement of the interpretation of the interpretation of law and the system of answering questions,so as to solve the problems for the parties after the trial.To perfect the system of civil mediation of the death penalty,to make the maximum effort for the defendant's discretion,and to reduce the psychological burden of the relatives of the victim.The establishment of a quantitative plot to limit the application of the death penalty supervision mechanism,so as to make the application of the sentencing plot more transparent and standardized.