To reform the death penalty, we should first limit the scope of application of the death penalty through legislation. This is mainly manifested in greatly narrowing the scope of application and limiting the death penalty from the aspects of legislative and technical norms and implementation system of the death penalty.
First, abolish the death penalty for most corruption crimes. Corruption mainly refers to economic crimes and property crimes. Countries that retain the death penalty in the world generally limit the provisions of the death penalty in criminal law to crimes aimed at depriving others of their right to life, and few legislative cases stipulate the death penalty for simple corruption, which reflects the concept of penalty equivalence of death penalty to some extent. Moreover, the death penalty has little preventive effect on corruption, and it is impossible to curb corruption through the death penalty. This is mainly because economic crimes are caused by economic, political, legal and other factors. The mistakes of national policies, the confusion of economic management, the corruption of government agencies, the interference of administrative networks, the weakness of social supervision and the lack of criminal legislation are all important reasons for the increasingly rampant economic crimes. Therefore, the key to prevent economic crimes is not to impose the death penalty, but to improve the legal system and eliminate corruption. Therefore, the death penalty should be reduced for the crime of corruption, which is determined by the value measurement of the right to life and property.
Secondly, there are 12 military crimes with the death penalty in China's current criminal law. Some of these crimes can be committed in wartime and peace, while others can only be committed in wartime. Judging from the situation of military justice, we have not seen these cases in which the death penalty is applied. It can be seen that it is useless to stipulate so many death sentences for military crimes, and the death penalty for non-wartime military crimes can be completely abolished.
At the same time, the death penalty for ordinary criminal offences that are not "extremely serious crimes" will be abolished. It is disgusting to analyze each criminal offence separately. However, the death penalty is the most severe punishment method, which can no longer be divided into severity and can only be applied to the most serious criminals, that is, "the crime is extremely serious." According to China's legal tradition and foreign legislative examples, the crime of serious intentional homicide is considered to be punishable by death and can be used as a reference standard for extremely serious crimes at this stage. In contrast, although the crimes of intentional injury, crime of trafficking in women and children, kidnapping, organizing forced prostitution, teaching criminal methods, smuggling counterfeit money and stealing or robbing guns, ammunition and explosives are all serious crimes, the harm is obviously less than that of intentional homicide, and the death penalty should be abolished. Of course, individual cases are exceptions. This needs to be clarified through technical legislative norms. Trial practice shows that 1997 criminal law abolished the death penalty for ordinary theft, which greatly restricted the application of the death penalty, but did not cause the bad consequences of theft.
It should be noted that some scholars advocate the abolition of the death penalty in crimes endangering national security, which I think is inappropriate. This chapter is listed as the first chapter of China's criminal law, which shows its position in criminal law, which is inseparable from the nationality of China's people's democratic dictatorship. Since the "9. 1 1" terrorist incident in the United States, the national ideology of the United States has reached a * * * understanding; The national interest is above everything else. Therefore, in order to safeguard national interests and security, the crime of death penalty in this chapter cannot be abolished. However, in order to reduce the sentence and charges of the death penalty, the existing charges can be simplified and merged. For example, crimes such as betraying the motherland, splitting the country, and armed rebellion. All of them were incorporated into the crime of treason and stipulated the death penalty.
Through the above treatment, we can further reduce the crime of death penalty in our criminal law. Such a provision not only conforms to the reality that China has to retain the death penalty at this stage, but also does not violate the trend of restricting the death penalty and gradually abolishing it in human legal civilization. Moreover, it is not far from the death penalty legislation in other countries in the world, and it is a more reasonable choice for China's death penalty legislation at this stage.
Third, the legislative restrictions on the execution of death penalty. China's criminal law stipulates the suspended execution system of death penalty, which is similar in nature to the exchange of death penalty in foreign criminal laws and is of great significance for reducing the execution of death penalty. However, there are still some problems in the application of probation system. Mainly manifested in understanding, first, it is not fully emphasized that the application object of the death penalty system is criminals whose crimes are extremely serious and should be sentenced to death. Some people understand the object of application of the death penalty as a criminal who died unjustly, which actually reduces the specification of the object of application of the death penalty; Second, there is a lack of unified understanding of "if immediate execution is not needed", and judicial organs in various places have their own ways in application.
"If it is not necessary to execute immediately ..." The author's basic understanding of this provision is: (1) If the death penalty is not executed immediately, it will be impossible to control the principal offender and cause new harm to society; (2) if the death penalty is not executed immediately, it may cause social shock; (3) Without the immediate execution of the death penalty, social fairness and justice cannot be reflected. Those who meet one of these three conditions should be executed immediately, for example, the ringleaders of major underworld criminal groups have committed capital crimes and so on. On the other hand, those who do not meet one of the above conditions should be suspended.
2. Judicial restrictions on the death penalty
In addition to making substantive and procedural restrictions on the death penalty in legislation, the application of the death penalty should also be strictly restricted in the judicial process. Although legislative restrictions are very important to reduce the application of the death penalty, in a sense, judicial restrictions are more important. If the judicial organs improperly apply and abuse the death penalty, it will lead to the consequences of misjudgment. The judicial restrictions on the death penalty are mainly manifested in the following aspects:
First, strictly explain the scope of application of the death penalty. In the case of unclear legal provisions, the scope of application of the death penalty should be strictly limited in accordance with the principle of strict interpretation. For example, many administrative laws in China have stipulated criminal liability clauses. From the perspective of legislative technical norms, the purpose of legislation is obviously to improve the comprehensive regulation and control ability of the law, but anything involving the application of the death penalty can only be limited to interpretation and cannot be expanded at will.
Secondly, in the trial practice, the conviction is strict and the death penalty is strictly applied. The application of death penalty by judicial organs is related to depriving criminals of their right to life. We should firmly establish a correct view of death penalty and strictly control the application of death penalty. It is forbidden to classify non-capital crimes as capital crimes. When the death penalty is imposed, it must be strictly in accordance with the legal basis for the application of the death penalty. If the crime is extremely serious and there are statutory aggravating circumstances, it will be sentenced to death. If there are statutory mitigating circumstances such as surrender and meritorious service, the death penalty should not be executed immediately. If there is a big controversy, the death penalty should not be executed immediately, but should be suspended to show caution. We cannot simply judge by the principle that the minority is subordinate to the majority.
Third, strict examination and approval. The application of the death penalty is related to depriving criminals of their right to life, so we should be cautious. Therefore, China's criminal procedure law stipulates the review procedure of death penalty. Article 48 of China's Criminal Law stipulates that all death penalty cases shall be approved by the Supreme People's Court except those decided by the Supreme People's Court. This provision is of great significance for strictly controlling the practical application of the death penalty. Because the Supreme People's Court's understanding of the spirit of criminal legislation is more accurate, the application of the death penalty is stricter when approving death penalty cases.
To meet the needs of cracking down on serious criminal offences. The Supreme People's Court authorized the higher people's courts of provinces, autonomous regions and municipalities directly under the Central Government to exercise the power to approve cases of murder, rape, robbery and explosion that seriously endangered public security and social order, delegated the power to review drug death penalty cases in Yunnan and Guangdong provinces, and authorized the higher people's courts of the two provinces to exercise it. This practice deserves deep reflection. According to the law, the Supreme People's Court should take back all the review rights of death penalty cases as soon as possible, so as to provide basic procedural guarantee for controlling the death penalty.
Third, the development trend of the death penalty in China criminal law
At present, the death penalty system stipulated in China's criminal law is an inevitable requirement of social justice at this stage, and it is also the value orientation of China's criminal law. First of all, the death penalty is an inevitable requirement based on ethical justice. It is a concrete manifestation of human morality, fairness and justice to sentence people to death for the most heinous crimes. Otherwise, it is not enough to uphold justice and safeguard the fairness of the law. The murderer was executed, and he deserved it. If the murderer is not dead, it shows that he is tolerant of one person and cruel to most people. Should be killed and forgiven, the world is endless. Therefore, it is natural to retain the death penalty. Second, the application of the death penalty is humanitarian and anti-humanity. The state has the responsibility to protect citizens' personal rights and democratic rights. Criminal acts endanger national security and infringe upon other legitimate rights and interests. When ordinary punishment is not enough to stop it, of course, the death penalty can be applied to stop it.
At present, due to the promotion of human rights movements in most countries, people's attitude towards the death penalty tends to be negative. As mentioned above, at present, more than half of the countries in the world have abolished the death penalty through legislative procedures. Moreover, the situation in countries that retain the death penalty or actually abolish it is different: a large number of countries only apply the death penalty for a few particularly serious crimes, such as murder and war crimes, such as the United States; Although some countries claim to apply the death penalty, they rarely carry it out, such as Japan. Therefore, although nearly half of the countries have retained the death penalty, many of them regard it as the last resort to eliminate evil, which does not mean that all these countries respect it. Judging from the current legal development trend, the total number of countries that have abolished the death penalty in recent decades will increase. This international environment has exerted a subtle influence on the concept of China people.
Therefore, in the long run, China should also abolish the death penalty. Some scholars predict that China will abolish the death penalty. Although the time is unpredictable, through the gradual change of people's ideas and the joint efforts of criminal legislation, judicature and theoretical research, the goal of finally abolishing the death penalty in China is not far away. After all, China is not the first country in the world to abolish the death penalty, and we have enough experience and lessons to learn from. Moreover, in the next few decades, China will certainly make great progress in politics, economy and culture, especially the people's concept of socialist legal system will inevitably make a great leap, and the people's concept of justice will also undergo great changes. These are positive conditions for China to abolish the death penalty system, and China's criminal law will be more humane.
refer to
[1] Ke Yaocheng: Changes of Criminal Law Thoughts, Beijing, China University of Political Science and Law Press, 2003, p. 2.
[2] Zhao Bingzhi: "A Probe into General Problems of Criminal Law", Beijing, Law Press, 2003, p. 135.
[3] Chen Xingliang: Philosophy of Criminal Law, Beijing, China University of Political Science and Law Press, 1998, p. 375.
[4][ Italy] Beccaria, On Crime and Punishment, translated by Huang Feng, Beijing, China Legal Publishing House, 2002, pp. 52-53.
[5] Jia Yu: "Thinking about Crime and Punishment", Beijing, Law Press, 2002, p. 249.
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