Study On The Reprieve System Of Immediate Execution Of Death Penalty Under The Perspective Of Alternative Measures Of Death Penalty

As the humanitarian thoughts on criminal punishment establishes,the voices for abolishing death penalty get stronger and stronger.Therefore,the death penalty has been abolished in many countries around the world.However,the criminal crimes in China are still in a high-pressure situation at present,the premature abolition of the death penalty will not be conducive to the current law nation-building.Therefore,China should construct substitute measures on the premise of retaining the immediate execution of death penalty.On the choice of the concrete scheme for the substitute measures of the immediate execution of death penalty,the unique system of death sentence with a reprieve in China has advantages,it also reflects the purpose and value of the substitute measures for the immediate execution of death penalty.In the legislation,the system of death sentence with a reprieve is divided into three types: general type,limited commutation and life imprisonment,the latter two types further enhance the severity of the system of death sentence with a reprieve.Obviously,the system of death sentence with a reprieve has already been regarded as the substitute measures for death penalty in our legislation.And the number of sentences for immediate execution of the death penalty has been gradually reduced and replaced by a growing number of the reprieve system of death penalty in our criminal judiciary.Hence it can be seen that the judicial authority has set the system of death sentence with a reprieve as the substitute measure for the death penalty.In the academic circle,the disputes about the feasibility of replacing the immediate execution of death penalty by the reprieve system of death penalty is divided into two categories including “affirmative theory” and “negative theory”.The author holds the affirmative opinion.The reprieve system of death penalty is produced under the applicable background of “limiting the death penalty” and is between life sentence and death penalty,and moreover,it is the natural alternative measure for the immediate execution of death penalty.Meanwhile,it also possesses the applicable value function for limiting the death penalty.However,there are disadvantages of the unclear rules existed in the reprieve system of death penalty,such as “don't have to do it right away”,“intentional crime and bad circumstances”,if we want to realize its alternative role,it must clearly define its related legal language meaning,and ravel out the boundary between stay of execution and immediate execution of death penalty of three types.For achieving the replacement to the immediate execution of death penalty by the reprieve system of death penalty,it needs to limit the application of immediate execution of death penalty at a macro level;implanting value judgment limiting the application of death penalty from the judicial working level;constructing the legal specifications for communicating of both of them between law and case.Secondly,it needs to exchange the status of stay of execution and immediate execution of death penalty;complete the legislative defect of the reprieve system of death penalty;coordinate the relationship between stay of execution of three types and immediate execution of death penalty,and establish “filter layer” rule,the first layer is stay of execution of restricted abatement from penalty and stay of execution of life imprisonment,the second layer is the general stay of execution,while the third layer is immediate execution of death penalty.In this way,the shunt application of the reprieve system of death penalty can be realized,thus to realize the transition to restricting and abolishing the death penalty in silence.