Research On The Defense Reasons For Murder Of Passion In British And American Criminal Law And Its Reference

Heat of passion manslaughter in common law is a partial defense to the crime of homicide that has a long history of evolution.While its constituent elements differ slightly in the British and the United States,their most basic element is the same.That is,there must be sufficient provocation which would cause a reasonable person in that situation to develop the passion to kill.Influenced by Model Penal Code,many U.S.state criminal code laws had recognized heat of passion manslaughter,with only slight differences in the specific provisions.The nature of the heat of passion manslaughter had risen controversy in Anglo-American scholarly and judicial circles.The focus is on whether it is a partial justification or an partial excuse.It has also been argued that it is a special comprehensive defense.The laws of China's Tang and Qing dynasties both created exclusive crimes for heat of passion manslaughter.Several draft criminal laws after the founding of PRC have also provided for the heat of passion manslaughter.The current criminal law does not specifically provide for this,but the relevant judicial interpretations make cases similar to heat of passion manslaughter a sentencing circumstance.The common law defense of heat of passion is comparable to the relevant judicial interpretations in China,and they both have structural and functional commonalities.China's academic community should give a specific theoretical connotation to the judicial interpretation of "intentional homicide caused by marital and family,neighborhood disputes and other civil conflicts," in order to guide judicial practice.The basic spirit of this connotation is that the qualified passionate killing is a quasi-legal(i.e.,judicial interpretation)mitigating circumstances.If the defendant is sufficiently provoked to kill,the death penalty or a more lenient punishment may not be imposed if the prescribed conditions are met.The Anglo-American statutory defense of the heat of passion manslaughter has both pros and cons in relation to the relevant sentencing circumstances provided for in our current judicial interpretations.Drawing on Anglo-American regulation and theory,combined with the actual situation,China should improve the existing judicial interpretation,or the introduction of special judicial interpretation,in order to clarify the causes of passionate homicide can not be sentenced to death-"sufficient provocation" objective criteria and the defendant's personal risk of judgment standards,in order to guide the judiciary to reasonably grasp the conditions for the application of the sentencing circumstances of passionate homicide.In addition,issuing consecutive types of guiding cases by The Supreme People's Court of The People's Republic of China and the The Supreme People's Procuratorate of The People's Republic of China,is also a good way to guide the judiciary to scientific and reasonable application of passionate homicide sentencing circumstances.According to the relevant judicial interpretations and published cases,domestic violence,repeated difficulties and threats,beating the defendant's relatives,and extreme marital infidelity are heat of passion manslaughter caused by provocation,which are mitigating circumstances and can be sentenced within the range of three to ten years or more than ten years of imprisonment or life imprisonment;heat of passion manslaughter that not caused by provocation,such as emotional frustration and civil disputes,can be sentenced to suspended execution of the death penalty.