Research On The Effective Limitation Of The Application Of The Death Penalty In China

The abolition of the death penalty has been under discussion for more than two hundred years since 1764,when the Italian criminal law scientist Beccaria raised the issue of abolition of the death penalty in his book On Crime and Punishment.Although the death penalty plays an important role in special prevention,it is difficult to pass the test of impartiality because of the irreversible misjudgment,From the substantive point of view,the death penalty should be allocated to the infringement of rights and interests of the value of no less than the value of life crimes,economic crimes,non-violent crimes should no longer be set up the death penalty.In addition,the death penalty itself is torture and inhuman.Humanity does not allow cruel punishment to punish and prevent crime,the efficiency and fairness of the death penalty will eventually give way to humanity.According to United Nations statistics,more than 150 countries in the world have abolished or substantially abolished the death penalty in national units.China’s Criminal Law Amendment 8 and Criminal Law Amendment 9 have abolished22 death penalty charges,but there are still as many as 46 death penalty charges in China’s criminal law.However,in view of the policy and cultural factors of our country,it is difficult to realize the complete abolition of the death penalty,and strictly restricting the application of the death penalty should be a reasonable choice in our country at the present stage.With the idea of mild punishment and modesty,this paper hopes to reduce the application of death penalty by studying how to strictly restrict the application of death penalty in our country at present,and to add more fair,humane and civilized colors to our criminal law.The main research methods used in this paper are literature research,data analysis and comparative research.Through studying and summing up the previous research results,this paper investigates the solutions to the death penalty problem in different countries（regions）,thinks about the differences of the death penalty problem in different regions of our country,the social reality of experience,the judgment and choice of the value of the death penalty at present,and puts forward some feasible measures to strictly limit the application of the death penalty.Specific restrictions on the application of the death penalty can be carried out in the following areas:First of all,improve the trial system of death penalty cases.Primarily,it is necessary to perfect the collegial panel system,change the present situation that the three-member collegial panel can impose the death penalty,and stipulate that the number of collegial panels shall not be less than 7.At present,there is still a big loophole in the system of minority obedience to majority,which should be changed to one vote veto,that is,the death penalty for the defendant needs the unanimous consent of the members of the collegial panel.Second,if the collegial panel finds it difficult to make a decision in a death penalty case,it shall submit it to the trial committee for decision.The decision of the Trial Committee is therefore extremely important,but the trial committee’s hearing of cases is usually written,in violation of the principle of direct speech,so the trial committee will continue to play an important role in the case of the need to change the written and even administrative hearing.Thirdly,improve the procedure of capital punishment review.Defence counsel and the Public Prosecutor’s Office should be able to participate fully and play a substantive role.It should be made clear that the Supreme Procuratorate shall take the initiative to participate in any death penalty review case carried out by the Supreme people’s Court and exercise substantive supervision over the death penalty review,Specifically,it shall take the initiative to interrogate the accused;take the initiative to listen to the opinions of the defence counsel;consult a specialized agency or a person with expertise on relevant technical issues,or commission an examination of evidence;and improve the review procedure of the court,which shall hear the opinions of the defence counsel,Therefore,it is necessary to change the passive hearing of the defence counsel to the active hearing;in the period of review,the period of review is set at a relatively long time.It could also be done in a manner that,in principle,did not exceed the maximum period of time,and in exceptional cases,could break through the maximum period of time and allow sufficient time for the review of the death penalty;finally,in the outcome of the review,the court should be allowed to commute the sentence directly if the death penalty was not approved,and not all cases should be returned for retrial.Secondary,Improve the evidence and law application in death penalty cases to limit the application of death penalty.Especially in first instance cases,we should strictly examine the evidential ability and proving power of evidence,Attention to the collection of defence evidence,and strictly implement the standard of proof that eliminates reasonable doubt,In addition,the standard of proof in death penalty cases can be divided into conviction standard and sentencing standard,and the standard of sentencing can be raised to avoid misjudgment.To limit the application of the death penalty by expanding the scope and logic of the terms of the criminal law provisions "not necessarily executed immediately ",and to restrict the interpretation of the law,such as the interpretation of the heavier and heavier circumstances.In addition,it is also an optional and meaningful way to solve the criminal law problem by constitutional interpretation.The right to life deprived by the death penalty should be guaranteed by the Constitution.From the perspective of constitutional interpretation and to examine whether the new death penalty is unconstitutional can also promote the reduction of the application of the death penalty.Finally,explore alternative measures to limit the application of the death penalty.First,give full play to the role of deferred execution of the death penalty,that is,the ultimate realization of deferred execution instead of immediate execution.However,it still needs to be carried out in a gradual manner,first in the form of judicial or legislative interpretation,the suspension of the execution of the death penalty as a general case,and immediately as a special case,after which the system can be determined by amending the law.Second,there is a special life sentence to replace the death penalty.Life imprisonment without parole in other countries（regions） is still an inhuman penalty,and the establishment of life imprisonment with parole is not in line with the existing penalties in our country.It would be more appropriate to reduce the application of the death penalty by substituting special life imprisonment,life imprisonment with parole but without commutation.