(4) Supporters generally believe that the death penalty is necessary, especially for the "retribution" of murder and the "atonement" of criminals. It is irrational to say that the death of the actor is a necessary condition for him to "atone" for his crimes. Psychological analysis shows that the concept of "atonement", as the title of penalty purpose, is nothing more than a demand for revenge and an increasingly serious atavism related to people's original fear [18]. More importantly, the concept of "atonement" cannot provide a clear boundary and scale for sentencing, and it has the possibility of accurate legal review. Punishment requires the society and criminals to reach a settlement through sanctions, and the party who implements reconciliation eventually rejects reconciliation, which runs counter to the concept of a harmonious society. The death penalty under the concepts of "retribution" and "atonement" does not conform to the essence and significance of punishment. Not only can it fail to achieve the purpose and task of punishment, but it also has serious shortcomings and dangers.
(5) The irretrievability of innocent judicial mistakes is fatal to the existence of the death penalty. In this respect, freedom penalty and fine penalty are obviously different from death penalty. If the judgment or execution is wrong, you can compensate for the loss in money and at least partially settle the unjust case. The first premise of the legality of penalty is the necessity of maintaining legal order. The existing life imprisonment and free punishment in the penalty system (although life imprisonment has its own problems) can completely replace the death penalty. Since it is necessary and possible to replace it, the death penalty system is unnecessary and redundant in criminal policy (in reality, the security situation in countries and regions that have abolished the death penalty is at least as good as that in countries and regions that retain it).
(6) As long as judgments are made not by God but by people, mistakes are always inevitable. Even if it is forbidden to base the death sentence on indirect evidence in litigation, it is still inevitable to kill the innocent by mistake. Due to rigorous logical investigation and the imputation of human manipulation, any evidence method is ultimately an indirect proof tool. At the same time, the contradictions and conflicts between the premises of criminal proceedings in a country ruled by law are inevitable, and their goals can only be achieved through the mutual restriction of different basic principles of litigation. Therefore, the prohibition of exploring the principle of truth at all costs is an indispensable institutional obstacle to discovering truth. The confession is only circumstantial evidence. If the confession obtained by confession or torture is rashly used directly in the death sentence, then the execution of this sentence is likely to be irreparable judicial murder. Despite these judicial mistakes, even if it is rehabilitated, it will not help (because one of the parties in the matter no longer exists), but those who support the death penalty still adhere to the inhuman principle: it is better to escape the net by mistake.
(7) The existence of the death penalty will violate the normal judicial and litigation logic in domestic and international judicial cooperation. If some countries decide the death penalty according to the amount of property crimes, resulting in the actor sharing the amount with the innocent, they are exempted from the crime of impersonation punishment of the death penalty (if they are related, they can be exempted from punishment); In international judicial cooperation, because some countries have the death penalty, others don't, countries that have the death penalty and have jurisdiction, and countries that don't have the death penalty but the criminal suspect is in their territory, the question of whether the criminal suspect can be extradited arises. Because according to Article 8 of the International Criminal Judicial Assistance Law (IRG), a criminal may not be extradited to a country that threatens him with the death penalty, unless the country requesting extradition guarantees (or promises) that the death penalty will not be imposed or at least will not be executed in this case. In general criminal cases, criminal suspects always want to prove that their crimes are minor, and defenders often defend innocence or minor crimes. However, in the extradition of criminal suspects in countries without the death penalty, criminal suspects strongly claim that they have committed a felony punishable by death penalty in order to escape the death penalty, while countries with the death penalty as prosecution provide proof that they have only committed a minor crime that should be sentenced to a fixed-term imprisonment of 10 years or less in order to realize jurisdiction. This is just the opposite of the defense of general criminal cases [19].
(8) The death penalty may become an economic way for the state and society to pass on the responsibility. It is entirely possible to relieve and eliminate the pressure brought about by the long-term accumulation of social contradictions and institutional defects by taking full responsibility by individuals and using the execution of condemned prisoners [20]. In essence, this will lead to covering up and avoiding problems, shirking and shifting responsibilities, and weakening and shaking the motivation and foundation for changing other social systems. Taking the death penalty as a panacea to solve all outstanding problems in criminal law is to arbitrarily and quickly expand the death penalty provisions in a short period of time and sentence and execute a large number of death sentences.
(9) It is problematic for criminal judges to deprive others of their right to life. Because on the one hand, it is the requirement of the principle of socialization of sentencing to create a rebirth opportunity for criminals through the judge's penalty discretion, and the discretion of death penalty violates the purpose orientation of criminal judges in humane, rational and realistic criminal policy [21]; On the other hand, if the prerequisite for sentencing a branch of death penalty is limited to: excluding the arbitrariness of sentencing death penalty and not applying too serious circumstances, there will be a danger of endangering the legitimacy of judges' discretion. Because the exclusion of discretion (such as absolute punishment) is to prevent arbitrariness, there will be less serious situations than legislators think, and death penalty will also be encountered; In view of the judge's discretion (relative punishment), there will be the danger of applying different treatment [22]. Based on the particularity of the death penalty, if this really becomes a prerequisite for the death penalty department, it actually denies the judge's discretion of death penalty in essence.
(10) The values of humanity, human rights and human dignity do not allow the death penalty to occupy a place in all legal systems in the world. We should attach great importance to the fact that the death penalty is a powerful weapon in the power struggle, because it has an irreversible influence in a country that illegally governs the country, and it is very likely to be used to eliminate dissidents or heresies in politics or religious beliefs. In addition, the inhuman prejudice against life without survival value is incompatible with the view of "recognizing the deep-rooted dignity of all members of human society" expressed in the preface of the United Nations human rights convention 1966 and the view expressed in Article 6, paragraphs 1 and 2 of the International Covenant on Civil and Political Rights. This is mainly because from the two major changes in the way of sanctions and the focus of the criminal system since modern times [23], the death penalty is closely related to people's in-depth reflection and understanding of human dignity.
Not irrevocable death penalty [24] is not a penalty, but it does exist in positive law. When the contradiction between positive law and justice supported by axioms is irreconcilable, the solution given by "radbruch Scheformel" [25] is that positive law must be compromised as "incorrect law". In other words, the criminal law must be amended to abolish the death penalty.
Third, how to implement the "death of the death penalty"?
Opposing the threat of death penalty from the state to individuals [26], especially in countries that assume that all citizens are "criminal subjects" in criminal law theory, has more important practical significance.
The death penalty with objective function will always be accompanied by the historical process of building a free, democratic and rule-of-law country. From questioning, discussing, debating and criticizing the death penalty to abolishing it, it is a process for individuals to recover their dignity from the state. It is a realistic criminal policy to restrict and gradually abolish the death penalty when it is difficult to abolish it for a while. First of all, in substantive law, according to the principle of proportionality in a country ruled by law, it is necessary to maintain the "last resort" of criminal law, that is, when other means, especially civil and administrative means, are insufficient to provide corresponding protection for corresponding legal interests, criminal law can be used as a "heavy weapon" [27]; The death penalty ranks first in the criminal code system and is the "last resort" of punishment. In this way, the death penalty has become a "last resort" and a "strategic nuclear weapon" that cannot be easily used first. That is to say, in legislation, let the norms restricting the death penalty in the criminal code have a practical normative effect on the death penalty legislation of capital crimes. In criminal law, the death penalty should be limited to the most serious crimes; In judicature, when applying norms, a judge may not apply the selected norms to conviction and sentencing if he cannot prove that the selected norms conform to restrictive norms [28]; Avoid the interference of extra-legal factors, emphasize the independence of judges, especially the independence of individuals, and decide whether to impose the death penalty by the trial court rather than the judicial Committee, and try not to impose the death penalty.
Actively carry out empirical research on the general preventive effect of death penalty to provide sufficient empirical scientific knowledge for the formation of public opinion; Use the media to mobilize the public, actively reflect on the judicial mistakes of indiscriminate killing, so that the public can fully realize the harm and danger of "judicial killing", so as to alleviate the possible public pressure when judges make non-death sentences.
Of course, the purpose of restricting the death penalty can also be achieved through the technical rules of litigation. First, further effectively protect the rights of defense lawyers and strengthen the professional defense level of criminal defense lawyers in death penalty cases [29]; Secondly, the standard and degree of proof of death penalty cases should be improved: the more serious the threat of imposing sanctions, the higher the certainty of the factual basis required by the court decision, and the protection of the defendant's right to defense must be more prominent and effective [30]; In the procedure of death penalty review, we should concentrate our power as soon as possible [3 1], clarify the review standard [32], unify the rules, strictly stipulate the review period, and directly conduct non-written review in the touring places; In terms of institutional setup, the Supreme Law establishes a review court, strictly controls the establishment and funds, and may not add or add funds; Control death sentence and execution through review procedure. Third, it is necessary to expand the scope of application of the death penalty execution system. Finally, it is necessary to establish a pardon system [33] to remedy judicial power with administrative power, so that judicial errors and harshness can be corrected and tolerated in an additional way to reflect a lenient and humane criminal policy. In this way, it is difficult to sentence, not to sentence, not to approve, to change the sentence, to suspend the sentence and to grant individual pardon, and to make a transition to not executing the death penalty for many years, and to gradually abolish the death penalty in judicial practice, that is, to abolish the death penalty in fact. Finally, it is clearly stipulated in the Constitution to protect human dignity, abolish the death penalty and never recover it. And in the legislative technology, it is guaranteed that the constitutional provisions are difficult to modify or not to modify. In this way, the "end of the death penalty" was completed.