Research On The Applicable Standard Of Death Penalty In China

Generally speaking,it is considered that "crime is extremely serious" is the condition for the application of death penalty,"not to be executed immediately" is the condition for the application of death penalty suspension,but what is "crime is extremely serious" and what is "not to be executed immediately".There are no relevant provisions in legislation and judicial interpretation.Such general and vague provisions lead to the absence of judges in judicial practice.In order to solve these problems,the Supreme Court tried to clarify the application standard of death penalty by case guidance.This attempt has a certain enthusiasm,but due to the judges,it is necessary for the Supreme Court to use case guidance to clarify the application standard of death penalty.The reasons for refereeing are insufficient and unclear,and these problems have not been well solved.There are many disputes about the standard of death penalty application in the theoretical circles.At present,there is still no clear and reasonable interpretation plan.Therefore,it is necessary to re-interpret the standard of death penalty application.After the debate between the abolition of death penalty and the retention of death penalty,the academic and practical circles of our country have reached a consensus on the current restriction of death penalty and the long-term abolition of death penalty.In the path of restriction of death penalty,the interpretation of the restriction on the standard of application of death penalty is the most important.Therefore,it is very important to clarify the conditions of death penalty and death sentence reprieve.To clarify their respective conditions,first is to clarify the relationship between them The meanings of "extremely serious crime" and "not necessarily immediate execution" in different ways of understanding the relationship between the two are respectively represented.At present,there are four ways to understand the immediate execution of death penalty and the restriction of commutation of death penalty: principle exceptional,shunt parallel,gradual progressive,moral and ethical.These four ways of understanding have certain advantages,but there are also some problems.The principle exceptional way is to apply the death penalty to crime with the principle of immediate execution of death penalty and with the exception of suspended execution of death penalty.The "death penalty" here is understood as the immediate execution of the death penalty,which is logically problematic,leading to contradictions between the first half and the second half of the law.The juxtaposition of diversion interprets the death penalty in a broad sense.It regards the "extremely serious crime" as the general standard of death penalty,and diverts it into the immediate execution of the death penalty and the suspended execution of the death penalty after entering the circle of death penalty.In the process of defining the immediate execution of death penalty and the suspension of execution of death penalty,however,it is easy to lead to confusion in understanding because of the unclear level of defining the internal elements of death penalty;the principle of progressive suspension of death penalty is gradually adopted,and the principle of immediate execution of death penalty is exceptional.It is considered that "extremely serious crime" is the applicable condition of suspension of death penalty,and "extremely serious crime" and "must be immediately"."Execution" is the condition for the immediate execution of death penalty,which adopts a progressive way of understanding.This way of thinking is clear and logical,but deviates from the original intention of the law.Domestic theory can not solve all the problems perfectly,Japan and the United States have provided some ideas for us to understand the application standard of death penalty: to strictly restrict the application of death penalty,we must start from the conditions of access to the execution of death penalty.Others,such as putting a reprieve of death penalty as a procedure after all,will inevitably lead to the reduction of the standard of death penalty,expand the scope of application of death penalty,and adopt progressive delivery when The progressive thinking order can avoid the repetition of elements and the repetition of thinking.Therefore,for our country,a more reasonable way of understanding is to take the principle of reprieve of death penalty as the principle,with the exception of the immediate execution of death penalty.This does not mean that reprieve of death penalty should be regarded as the necessary procedure for the immediate execution of death penalty,but that the "extremely serious crime" should be regarded as the general standard of death penalty.For those who meet the "extremely serious crime",we should go to the next judgment to see whether it meets the "must be promptly executed".The death penalty shall be executed immediately if it is in conformity with the law,and the death penalty shall be suspended in principle if it is not in conformity with the law.When judging "the crime is extremely serious",we should follow the "three stages" step by step.First,we should see whether the perpetrator has implemented the death penalty charges stipulated in the Criminal Law.If so,we should go to the next stage to see whether the social harmfulness has reached the highest level and if it is in line with it,we should go to the next stage to see if there are sympathetic motives.If not,we can draw a preliminary conclusion that the death penalty is applicable.If it does not conform to the third stage or the third stage,the death penalty will not be directly excluded from the application of "extremely serious crime".The main consideration of "must be executed immediately" is the risk of recidivism of criminals,such as whether meritorious service has been rendered,and the consideration of the risk of recidivism can be divided into heavy circumstances and light circumstances according to its degree.When the number of aggravated circumstances is more than that of light circumstances,it is a high risk of recidivism and should be sentenced to death.On the contrary,it should be sentenced to life imprisonment or life imprisonment.