Problems And Suggestions Of Restrictive Commutation Of Death Penalty With Suspension

The restrictive commutation of death penalty with suspension has been applied for nearly 10 years since its establishment in 2011.In the initial stage,there were only Article 50(2)of the criminal code and a judicial interpretation.However,in the next five years,the Supreme People’s Court and the Supreme People’s Procuratorate successively issued judicial interpretation,judicial interpretation documents,guidance cases,etc.,to help scholars and judges understand the nature and application of this system.But in the process of legislation to practice,there are many uncertainties.For example,in the aspect of legislation,the legislative purpose is not clear,the legislative content is not rich enough,and it is easy to cause logical confusion.In the judicial application,there is no unified application standard,the guiding case role is limited,and the judges are not actively applied.In the implementation stage,there are no targeted assessment rules for limiting commutation offenders,the prison allocation is backward,and lack of human rights attention to the restriction of commutation.From the perspective of criminal policy,legislative activities are utilitarian,and the new legal system is established based on the needs of national order or social stability.As a kind of penalty,it is stipulated in the criminal code by legislators.In theory,it is to play its function as a penalty system,that is,to maintain the stability of social order by curbing crimes,which is embodied in the general prevention of deterring potential criminals in the society through the application of punishment,and the special prevention by applying punishment to criminals and reforming their no longer committing crimes through education.From the perspective of this criminal policy,we can find that the design of the system of limiting commutation of death sentence with a reprieve has a positive effect in curbing crimes,but its problems in legislation,judicature and execution will affect crime prevention in many aspects to varying degrees,so as to achieve the desired effect of curbing crime.In order to achieve the purpose of curbing crime,the functions of the system are embodied in three aspects.One is to imprison the perpetrator,so that he can not continue to commit the crime in the society,so that the criminal objectively loses the possibility of recidivism.The second is to apply the penalty and reform to the criminal,reduce his personal danger,make him give up the idea of committing the crime again subjectively,and prevent his recidivism.Third,through the strict trial of the criminals,we can alert the people who try to commit crimes in the society and prevent the occurrence of crimes.Based on the above ideas,we can take the following measures to improve the system.In terms of legislation,we should take the regulation of criminal acts as the primary legislative purpose of the system,grasp the nature of the system from the position of aggravating death sentence with reprieve,and refine the applicable conditions to facilitate the application of the system.In judicature,we should unify the application of standards to reduce the uncertainty of judicial trial,eliminate the system obstacles to improve the judge’s discretion enthusiasm,and grasp the guiding role of guiding cases with the range standard.In law enforcement,targeted assessment standards should be formulated to realize the individualization of punishment,prison facilities should be improved to improve the efficiency of education and reform,and social adaptation education should be carried out to reduce the possibility of recidivism.